Taxi Leaks

Thursday, 13 December 2012

Transport for London has suffered a double set back in two recent appeals in front of Westminster Magistrates’ Court. It lost both appeals against operators KV Cars and Couriers Ltd and Diamond Chauffeurs Ltd. James Rankin, a specialist licensing barrister from Francis Taylor Building successfully appealed against two decisions made by TfL. In all, the court awarded costs of £26,000 against TfL. The cases are significant for a number of reasons.

KV Cars: 1/10/12

Tfl has for some time been attempting to introduce a new policy in respect of the licensing of Private Hire Vehicle (“PHV”) operators. The new policy has been over two years in the making, and at the time of writing is still not in force. One of the cornerstones of the policy is an insistence by TfL that all PHV operators who operate from nightclub premises have to have a booking station INSIDE the premises. The authority has long argued that this is what the law requires. TfL believes that the words of the statute (“at licensed premises”) should be read as “inside licensed premises”).

The appellant argued that TfL had attempted to introduce the new policy in advance of its formal adoption by TfL by issuing a notice (19/09) requiring controllers of PHvs to stand inside the licensed premises. The Licensed Private Hire Car Association (LPHCA) protested vigorously to the notice and the new policy claiming that it was unnecessarily restrictive and that it compromised public safety. Nevertheless, before the adoption of the policy, TfL began implementing the policy as if it was in force.

In KV Cars TfL had sat on an application to vary the company’s operator’s licence so as to include Aquum bar in Wandsworth. The premises had been inspected; the fee paid; the booking procedures passed and given the go ahead. Despite numerous assurances the varied licence was not released because TfL was awaiting the adoption of the new policy (which KVC could comply with in any event).TfL revoked the company’s licence in its entirety when its enforcement officers discovered KV C’s employee acting as a controller at the premises (in this case OUTSIDE the premises!) in February 2012. The revocation was based also upon irregularities in KVC’s record keeping. The company employed 80-100 drivers. The revocation would have meant the death of the company.

The appellant argued estoppel; that the breaches in record keeping were technical and that the revocation of the licence was disproportionate. It was also argued that Anwar (a case which says that the personal circumstances of a driver cannot be taken into account when determining fitness to hold a licence) did not apply to a company. District Judge Roscoe agreed, and said that the revocation was disproportionate. She thought that a seven day suspension was more appropriate. She allowed the appeal and awarded costs of £12,500. TfL has asked her to state a case for the opinion of the High Court.

Diamond Chauffeurs Ltd: 8/11/12

The company (“DC”) operated from 14 nightclub premises. All of the other premises from which it operated had a lobby door inside which the controller could stand. At premises known as Abacus in The City of London there was no lobby door. Instead there was a recessed area and walkway which led to the pavement. The recessed area was owned by the club. It was separated from the pavement by ropes. It was behind this roped off area and in the recessed area that the controller stood. TfL had varied DC’s licence on another occasion (September 2012)so as to remove Abacus from it. The variation had been “with immediate effect”. DC successfully applied to the High Court for an injunction suspending TfL’s decision whilst they pursued an appeal. On appeal in September 2011 they were successful and costs were awarded against TfL (17/1/12).

Nevertheless, a month to the day later TfL again visited Abacus and witnessed DC’s controller accepting bookings “outside” the premises (in the recessed area) contrary to law and their “policy”. The officers also witnessed touting of Abacus’s customers by DC’s controller who asked persons if they would like a licensed car. Abacus was removed from the licence again (although this time not with immediate effect). DC appealed. Abacus represented 40% of its business; 40 drivers were employed at Abacus; DC undertook 400 journeys per week on behalf of the club. Steve Wright MBE (head of the LPHCA) was called as a witness to say that in his 40 years experience of the private hire industry it was safer to take bookings outside rather than inside premises.

The appellant successfully argued that if it was policy then it was not law; “guidelines not tramlines”; that TfL was mistaken in its assertion that the law required bookings to be taken inside premises; that on any commonsense reading of the law and applying it to the facts DC’s controller was operating AT Abacus; that even if the appellant was wrong in that, it was disproportionate to remove Abacus from the licence. It was conceded that touting had taken place. Steve Wright who had been responsible for the 1994 “no touting”law explained that it was not designed to catch touting of the sort witnessed by TfL. Rather, it was aimed at the aggressive street touts acting on behalf of unlicensed and uninsured vehicles.

District Judge Fanning agreed. He found as a fact that DC was operating at the premises, and that this was just such a case when departure from the policy was permissible. Public safety was not compromised by bookings being taken in the recessed area. He agreed with DJ Roscoe that Anwar was restricted to its facts and did not apply to companies. The appeal was allowed and costs of £13,600 were awarded.

Saturday, 8 December 2012

(a)indicating that vehicles can be hired on application to a specified address in London;

(b)indicating that vehicles can be hired by telephone on a telephone number being the number of premises in London; or

(c)on or near any premises in London, indicating that vehicles can be hired at those premises.

(2)No such advertisement shall include—

(a)any of the following words, namely “taxi”, “taxis”, “cab” or “cabs”, or

(b)any word so closely resembling any of those words as to be likely to be mistaken for it,

(whether alone or as part of another word), unless the vehicles offered for hire are London cabs.
(3)An advertisement which includes the word “minicab”, “mini-cab” or “mini cab” (whether in the singular or plural) does not by reason only of that fact contravene this section.

(4)Any person who issues, or causes to be issued, an advertisement which contravenes this section is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(5)It is a defence for a person charged with an offence under this section to prove that—

(a)he is a person whose business it is to publish or arrange for the publication of advertisements;

(b)he received the advertisement in question for publication in the ordinary course of business; and

(c)he did not know and had no reason to suspect that its publication would amount to an offence under this section.

(6)In this section—

“advertisement” includes every form of advertising (whatever the medium) and references to the issue of an advertisement shall be construed accordingly;
“telephone number” includes any number used for the purposes of communicating with another by electronic means; and “telephone” shall be construed accordingly.

1. By s.4(1) of the Private Hire Vehicles (London) Act 1998 (“the Act”), the holder of a London Private Hire Vehicle operators licence shall not accept a private hire booking other than “at an operating centre” specified in his licence.

2. The Appellant is the holder of such a licence which includes (in addition to 13 others) an operating centre at Abacaus, 24 Cornhill, London (“the Premises”).

3. On 28th February 2012, the Respondent notified the Appellant of its decision (under s.19 of the Act) to vary his licence by the removal of the Abacus operating centre on the [grounds set out in its letter of 28th February 2012 ]

following grounds:

a. the Respondent had received complaints of “incidents of taxi touting and a breach of licensing obligations at the premises”;
b. As a result of the investigation that arose from that complaint, on 17th February 2012 two of the Appellants operators were observed “accepting bookings outside the operating centre located inside the Abacus nightclub premises;” and
c. “Therefore, you have failed to demonstrate that you are complying with the requirements of ……the 1988 Act. The evidence of the complaint, coupled with the result of the investigations, indicates a pattern of unacceptable conduct and a breach of obligations by you and those acting on your behalf…..”

4. In summary, the Respondent’s case proceeds upon two limbs, and on a joint and several basis, either or both amounting to justification for the variation of the Appellant’s licence:

a. The first issue is this – the Respondent being of the opinion that in placing his operators outside of the doors of, rather than within, the Premises, the Appellant is in breach of it’s Public Carriage Office Notices and, in turn, s.4 of the Act;
b. The second issue is - the evidence, the Respondent says, of the Appellant’s operators “touting” for business at the Premises.

5. For his part, it is the Appellant’s case that the word “at” in s.4 of the Act does not mean “within the doors of” or “inside” the operating centre.

6. Further, he says that the contents of the PCO Notices is guidance only and not in itself the law, and that the interpretation of the law within the notices is wrong.

7. In any event, if I find against him on that point of law, and if I found that “touting” has taken place, the Appellant avers that the decision to vary his licence in response was disproportionate.

8. The first issue turns on phraseology – specifically, whether the word “at” in s.4(1) necessarily implies that bookings must take place inside the doors of the Premises (as the Respondent insists), or whether it permits bookings to be taken outside the doors of the premises.

9. The second issue turns on whether there is evidence of “touting” at the Premises by or on behalf of the Appellant, and whether if there is, this either alone or in tandem with the first issue warranted the variation.

10. I have seen a series of photographs of the premises, and looked at both the Land Registry plan, and a copy of the plan annexed to the premises licence. I have heard from a number of witnesses including Mr Lamb, the general manager of the Premises, and Mr Sarr, a compliance officer who is familiar with them.

11. In fact, the access doors are not aligned with the boundary of the Premises, but are set back. There is some dispute as to by how far, but it can be gauged from the photographs. That recessed area is partially covered by the floor above. The whole area is effectively a box, with a floor beneath, a roof covering most of what is above, enclosed on three sides but open to the pavement on its fourth.

12. When the premises are open for business, that fourth side is bounded by ropes, and access is controlled by doormen and, on busy nights, Mr Lamb himself. Potential customers must queue on the pavement before being permitted (or not) to leave the pavement, cross onto the premises and approach the doors. They make payment once within the doorway.

13. On Friday 17th February 2012, Perry Kissin and Natasha Young, employed by the Respondent as compliance officers, attended the Premises. They observed two of the Appellants operators standing within what they described as “a covered and roped off area” but outside the glass doors.

14. Again, in short, the Respondents case is that the Operators asked Mr Kissin & Miss Young if they wanted a taxi. The compliance officers were of the view this amounted to prohibited touting (wherever that approach took place – indoors or out), and, their view being that bookings had to take place inside an operating centre rather than on the street or pavement, a breach of s.4. Accordingly, they cautioned and interviewed the operators – pointing out the offences being committed as they saw it.

15. It was as a result of this incident, following as it did a complaint from the Licenced Taxi Drivers Association (which had provided earlier evidence allegedly showing “touting” by the Appellant’s operators) that, ultimately, led the Respondent to vary the Appellants licence (although I do note that this was not the first occasion that the Appellant had been challenged by the Respondent about his operating practices at the Premises).

16. Turning to the nub of this case. As to the s.4 point: I illustrate my decision with an analogy. Imagine the Premises were in fact a boat moored on the Thames, with a short gangway leading from the Premises to the embankment, and with access from the embankment to the gangway patrolled by doormen and a rope. Could it be said that the Appellant’s operators, stood on the outside deck of the boat, were operating other than “at” the premises? Could it be said that they were on the street or the pavement? Could there be a risk of confusion between members of the public as to who were licenced operators “at” the premises, and those who were not, being on the embankment?

17. In my view, in this case, and having regard to the particular geography of the entrance area to the Premises, the operators were standing in an area to which access was controlled by doormen and which was clearly separate, and distinct from the pavement and street. I don’t think my analogy is too far fetched. I am satisfied that the operators were operating at the Premises. There was no breach of s.4.

18. There then arises the issue of how I square that interpretation with the Policy notices, my finding being contrary to that guidance. I do so in two ways:

a. Firstly, unlike the policies discussed in the authorities before me today, the Respondent’s policy is non-statutory. Whilst entitled to draft and publish it, and to use it as a guide for the discharge of its functions under the Act, it is no more than that – a guide. I doubt that the only course of challenge to it is by way of judicial review;
b. Secondly, Mrs Chapman made it clear in her evidence that the Policy permits discretion, to be exercised on a case by case basis, as to the application of the policy. She confirmed two venues at which there have been operating centres permitted out of doors.

19. Accordingly, if I am required, for the purposes of this Appeal, to step into the shoes of the Respondent when adjudicating upon its decision, I can, if I see it as appropriate, exercise that same discretion.

20. As to the “touting” issues. Technically, I can see that the s.167 offence is made out if the operator makes an approach to a customer rather than the other way round. The Appellant concedes that to be so on the evidence. However, the Appellant has operators on the Premises at the request of its management. They are clearly identifiable as operators for the Appellant’s firm. They stand at a designated location. They operate in tandem (now in triplicate) one to accept bookings, another to convey customers to a particular car – thereby protecting the paying public from un-licenced and unregulated operators whom I am told are a regular danger in the immediate vicinity of the Premises. Given the mischief at which the regulation of taxi firms is directed, the breach observed on 17th February 2012 was a minor one, and not one that was inimical to public safety.

21. Accordingly, having regard to the evidence adduced and to the particular facts of this case, I am satisfied that approaching the matter afresh, and standing in the Respondent’s shoes, but with the benefit of these proceedings, and the presentation and testing of evidence within them, to vary the Appellants licence as was done is unsustainable for these reasons:

a. I find no breach of s.4; the wording of the Act clearly permitting the Appellants controllers to operate at the premises in the position that they were;
b. I believe that the Respondent should, in respect of its policy, have in any event exercised its discretion to permit the Appellants operators to stand on the external side of the doors to the premises, it being unreasonable to conclude that there was a real risk of the public confusing the Appellant’s operators in that position with the unregulated touts located in the street beyond; and
c. the Respondent’s response to the “touting” was, given the technical nature of that breach as I see it, a disproportionate one.

Ms Marie Demetriou QC and Ms Kelyn Bacon (instructed by Maitland Walker LLP) for the Claimant
Mr Martin Chamberlain and Ms Sarah Love (instructed by Transport for London) for the Second Interested Party

1. The Claimant company, Eventech Ltd, is an associated company of Addison Lee plc (“Addison Lee”) which operates a fleet of private hire vehicles (“PHVs”) – colloquially known as minicabs – in Greater London, and is the registered keeper of all Addison Lee’s PHVs, which are leased out by Addison Lee to self-employed drivers.
2. Addison Lee is the operator, licensed by Transport for London (“TfL”) pursuant to the Private Hire Vehicles (London) Act 1998 (“the 1998 Act”), of some 2900 minicabs, the largest fleet of PHVs in Greater London.
3. TfL is a statutory body created by the Greater London Authority Act 1999 (“the 1999 Act”). It has the function, by ss141 and 154 of the 1999 Act, of promoting and encouraging safe, integrated, efficient and economic transport facilities and services to, from and within London. Its duties include securing the provision of public passenger transport services (including bus services) to, from or within Greater London. TfL is also by s121A(1A) of the Road Traffic Regulation Act 1984 (“the 1984 Act”) the traffic authority for every Greater London Authority (“GLA”) road and, as such, has responsibility for the designation of bus lanes on those roads. The GLA roads account for 5% of London’s roads, but for 38% of its bus lanes, being situated in those parts of central and inner London where congestion is heaviest and where buses (carrying 5.8 million passengers every weekday) are most likely to be affected by traffic congestion. TfL is also responsible, pursuant to ss253 and 254 (and Schedules 20 and 21) of the 1999 Act, for all licensing and monitoring activities in relation to minicabs and to hackney carriages. The latter is the historical and statutory term (derived, it seems, from the London village of Hackney, famed for its horses and horse-drawn carriages) for what are now commonly known as taxis or ‘black cabs’.
4. The issue in this case arises between the Claimant, for whom Marie Demetriou QC has appeared with Kelyn Bacon, and TfL as Second Interested Party, represented by Martin Chamberlain and Sarah Love. It consists of a challenge by the Claimant to the policy of TfL and London boroughs whereby, whereas black cabs are permitted to drive in most London bus lanes, minicabs are permitted to drive in none during their hours of operation, save to pick up or set down pre-booked passengers (“the Bus Lane Policy”). Such policy is claimed by the Claimant to offend against the European Union (EU) right of freedom to provide services (Article 56 of the Treaty on the Functioning of the European Union as consolidated (“TFEU”)) and of freedom of establishment (Article 49 TFEU) and/or the EU general principle of equal treatment, to be Wednesbury unreasonable at common law and/or to amount to favourable treatment of black cabs as against minicabs, such as to constitute unlawful State Aid, contrary to Article 107 TFEU.
5. The challenge arises out of two penalty charge notices (“PCNs”), issued on 13 and 20 October 2010, against the Claimant, in respect of the use of a PHV owned by the Claimant in the Southampton Row bus lane, issued by the London Borough of Camden, which was taken to appeal by the Claimant before the Parking Adjudicator. Before the Parking Adjudicator, the Claimant challenged the validity (on the above basis) of Article 3 of the Camden Bus Lanes (No 1) Traffic Order 2008 (“the Camden Order”). The Parking Adjudicator concluded that he did not have jurisdiction to disapply Article 3, and was not required to determine a potential conflict of domestic and EU law, but was only permitted to enforce the Order, and handed down his Decision dismissing the appeal on 16 August 2011. This application was issued by the Claimant on 16 December 2011, and permission to apply for judicial review was granted by Mr Michael Kent QC, sitting as a deputy judge, on 2 March 2012.
6. Neither the Parking Adjudicator (joined as Defendant) nor the London Borough of Camden (First Interested Party) has taken any part in these proceedings, which have been defended by TfL as Second Interested Party. It is common ground between the parties before me, and rightly so, that the Parking Adjudicator erred in his approach, and that, as an emanation of the State, such a tribunal should have considered the Claimant’s arguments as to the validity of the Camden Order under both EU and domestic law. Accordingly, to that extent, it is in any event the case that the decision of the Defendant Parking Adjudicator cannot stand, and that this Court is obliged to consider the validity of the Camden Order in these proceedings. The parties have agreed that any submissions on remedy be held over until after the Court has determined the issues as to validity.
7. A traffic authority responsible for a particular road has the power to restrict traffic on that road, or part of it, to certain types of vehicles, and thus to designate bus lanes, under s6 of the 1984 Act, and under that section the Camden Order was adopted, which designated a number of bus lanes, including the Southampton Row bus lane. Article 3(1) of the Camden Order prescribes as follows:
“No person shall cause a vehicle to be in a bus lane in any length of road specified in an item in Column (2) of the table in the schedule to this order during the time specified in that item in Column (3) of that item unless that vehicle was proceeding in the direction specified in Column (4) of that item and is of a type specified in Column (5) of that item.”

The Schedule to the Camden Order specifies that the Southampton Row bus lane is available to a vehicle that is a bus, a Dial-a-Ride bus, a pedal cycle or a “taxi”. Article 2 of the Order specifies that the word taxi has the meaning given in the Traffic Signs Regulations and General Directions 2002 (“the 2002 Regulations”).

8. It is therefore to those Regulations that one must look for a definition of the taxi thus permitted to use the Bus Lane, and that is contained in Regulation 4 of the 2002 Regulations, so far as England and Wales is concerned by subclause (a), as:
“A vehicle licensed under –

(i) s37 of the Town Police Clauses Act 1847; or

(ii) Section 6 of the Metropolitan Public Carriage Act 1869 [“the 1869 Act”]; or under any similar enactment. ”

9. Those sections referred to hackney carriages that are licensed to ply for hire. Black cabs are licensed under the provisions set out in the London Cab Order 1934 (“the London Cab Order”), adopted pursuant to the 1869 Act, which provides, in s8(2), that no hackney carriage “may ply for hire” within the Metropolitan Police District and the City of London unless under the charge of a driver licensed under s8, now by TfL. Thus, only a black cab, licensed under the London Cab Order, is permitted to “ply for hire” in London. There is no statutory definition of those words, but at common law it is interpreted (see Sales v Lakes and others [1922] 1 KB 553 at 557-558 per Lord Trevithin CJ), as meaning soliciting or waiting for passengers without a prior booking. Thus, although black cabs can be pre-booked (and according to a 2009 survey 8% of black cab journeys are indeed pre-booked), only black cabs can be hailed from the road or wait in taxi ranks for a pick-up.
10. Minicabs are thus not taxis for the purpose of the 2002 Regulations. They are licensed separately under the 1998 Act, are not permitted to ply for hire in London and may only take passengers who have pre-booked through the operating centre specified in the relevant licence.
11. There are approximately 23,000 black cabs licensed by TfL. The licensing regime, contained primarily in the 1869 Act and the London Cab Order, requires compliance by the registered keeper of a black cab with detailed standards set out in the London Cab Order and prescribed by the Conditions of Fitness 2007 (as amended). There are approximately 50,000 minicabs and 60,000 individual drivers licensed by TfL, primarily pursuant to the 1998 Act.
12. It is important at this stage to set out the material differences between mini-cabs and black cabs. A Law Commission Consultation Paper issued earlier this year (No 203) described the “two-tier licensing system” justified by “the very different characteristics” of the pre-booked market and the market for hailing and picking up at ranks:
i) As set out in paragraph 9 above, only black cabs can ‘ply for hire’ without pre-booking.
ii) Black cabs are subject to “compellability”, dating from the London Hackney Carriage Acts 1831 and 1853, which requires that where a black cab at a rank or in the street accepts a passenger, the taxi must take the passenger anywhere that he wishes to go, within a prescribed distance or up to a prescribed journey time. There is no such ‘cab rank’ obligation on a minicab.
iii) Black cabs are instantly recognised by reason of their shape and size and the illuminated TAXI sign. This is because they must comply with the Conditions of Fitness (“CoF”), which contain a number of standards (including the requirement for the illuminated sign). Currently only two vehicle makes comply with the CoF. Minicabs can be of any colour and any design: there are some 700 different makes and models of vehicles presently licensed.
iv) The fares of black cabs are strictly regulated and can only be charged by reference to a taxi meter. Minicabs are free to charge their own fares and are not metered. According to Mr Griffin, the founder and chairman of Addison Lee, Addison Lee’s fares are on average 35% cheaper than black cabs: the fare to be paid is quoted when the minicab is booked, irrespective of the duration of the journey, while black cab fares will of course vary depending upon the length of time that the journey takes.
v) Black cabs are required to be adapted for wheelchair access. There are no accessibility requirements for minicabs.
vi) Before being licensed, black cab drivers must undertake the “Knowledge of London” examination process, which can take two to four years to prepare for (“the Knowledge”). Minicab drivers must before licensing undertake a topographical test, which generally takes a day. Addison Lee voluntarily imposes more extensive training on their drivers, by a short attendance at their driver training school. Black cab drivers must pass the Driving Standards Agency Advanced Driving Assessment: there is no similar requirement for minicab drivers.
13. It is common ground that bus lanes are of considerable importance. The Claimant accepts, in paragraph 89 of its skeleton argument, that it does not in any way challenge TfL’s claim as to the importance of bus lanes to London’s transport system and the resulting improvement in journey times and reliability of service for bus passengers. TfL’s Bus Lane Policy has been in place since before its own creation in 2000, and the TfL Public Carriage Office Taxi and Bus Lanes Policy (2007) records that the policy is to “allow for taxis in all bus lanes unless their inclusion would cause significant delay to buses or would materially worsen the safety of road users including pedestrians, and taking account of the effects on safety of excluding taxis from the bus lane”. This latter aspect relates to the fact that taxis (black cabs) can be hailed by pedestrians from the pavement – according to the 2009 survey referred to in paragraph 9 above, 52% of taxi journeys result from passengers hailing them in the street.
14. An exception has thus been made to the reservation of bus lanes to buses, to include black cabs. That is where the line has been drawn (in respect of four-wheeled vehicles) by TfL. The Claimant asserts that the exception should be extended to include minicabs, and that a policy which does not do so falls to be challenged on the grounds set out in paragraph 4 above.
15. Evidence has been given by Mr Griffin, on behalf of the Claimant, and by Mr Ben Plowden, the Director of Planning, Surface Transport, employed by TfL. A report, dated 14 May 2012, for the purposes of this hearing, has been prepared for TfL by the Transport Modelling Consultancy SKM Colin Buchanan (“the SKM Report”). Although the Claimant has submitted a review of that report by the Transport Consultancy Waterman Boreham, which makes certain criticisms of the modelling and methodology in the SKM Report, Ms Demetriou has taken the sensible advocate’s course of putting her submissions for the Claimant primarily on the basis of TfL’s own report, i.e. accepting its contents for the purposes of such submissions. Since TfL expressly only relied upon the SKM Report to give a ‘partial insight at best’, the bulk of the Report, and in any event the Claimant’s critique of it and TfL’s response, contained at some length in Counsels’ skeleton arguments, did not, in the event, feature in the hearing.
The Claimant’s Case

16. The case for the Claimant is that the rule that minicabs cannot drive in London bus lanes is a restriction, and one which has the effect that their (fixed fare) journeys are likely to take longer in congested areas than those of black cabs. Such a restriction, imposed by Regulation, cannot be challenged at English common law unless it is Wednesbury unreasonable, but can be challenged if it comes within the ambit, and falls foul, of an applicable European rule or requirement, which will apply – put broadly – if there is a European or intra-Union trade element. Thus if a national of one Member State has restrictions imposed upon him in another Member State – even though they are the same restrictions as are imposed on the national of that other Member State (it is not necessary for the restriction to discriminate on grounds of nationality) – then he can complain of that restriction, even though a national of the home state who is equally restricted cannot complain. Hence a restriction on (for example) a grocery in Shropshire which cannot otherwise be complained of can be challenged where that restriction is alleged to have a relevant impact upon nationals of another Member State. That is the primary nature of the complaint by the Claimant, in respect of the restrictions imposed by TfL and other London boroughs on driving in London bus lanes.
17. The Claimant’s case is put:
i) by reliance upon Article 56 TFEU, which provides:
“Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.”

and/or

ii) by reliance upon Article 49 TFEU:
“Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited …

Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings … under the conditions laid down for its own nationals by the law of the country where such establishment is effected.”

iii) if necessary – if for example Article 56 does not apply (see paragraphs 25 to 28 below) –by reference to the European law principle of Equal Treatment, whereby, in areas otherwise within the scope of EU law, comparable situations must not be treated differently and different situations must not be treated in the same way, unless such treatment is objectively justified.
In each such case, if it applies, TfL can, the onus being upon it, justify the restriction upon grounds permitted by European law (primarily upon grounds other than economic) taking into account considerations of proportionality.

iv) if necessary, on the basis that the restriction is not Wednesbury reasonable at common law – obviously here the Claimant carries the burden of rebutting justification, in the sense that it must show that no reasonable body could have regarded the justification as sufficient.
v) finally, by reference to Article 107 TFEU which provides:
“1. Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or production of certain goods shall, insofar as it affects trade between Member States, be incompatible with the internal market.”

It is common ground that the disadvantage to the Claimant of not driving in the bus lane is capable of amounting to an economic advantage to its competitor, granted through State resources and/or imputable to the State. The Claimant will need to show that the measure is liable to distort competition and affect trade between Member States, and that it is favouring certain undertakings in a way that is not justifiable by the nature or the general scheme of the Bus Lane Policy imposed by the Regulations (known as the “Selectivity requirement”). If State Aid is established, then it can only be justified and rendered lawful by notification to, and approval by, the European Commission.

Article 56: The Issues

18. The facts relied upon by the Claimant are contained in the evidence of Mr Griffin. He explains that a substantial part of the Claimant’s business consists of the provision of services to persons established in other Member States. Over 100 companies established in other Member States hold corporate accounts with the Claimant, and many UK corporate account holders use the Claimant for employees or visitors arriving from other Member States, and the Claimant provides services to numerous passengers from other Member States who travel to London for business or pleasure. He says that the Claimant’s ability to expand this part of its business and offer more services to persons established in other Member States is hampered by its inability to use London bus lanes. The Claimant’s case is that the journey times are lengthened by virtue of such inability, thus rendering the service less attractive to customers. Black cabs can travel in bus lanes and, while the majority of black cabs is picked up by hailing on the streets or on ranks, 8% of black cab journeys are pre-booked (see paragraph 9 above). Advertisements for black cabs expressly publicise the fact that (for example) “only licensed London taxicabs can use London’s bus lanes to avoid traffic” and “our fully licensed taxis are the only vehicles that can use the fast bus lanes in London, which help you to get to your destination fast and on time”.
19. Mr Griffin explains that, in seeking to expand the provision of minicab services to nationals of other Member States, Addison Lee has developed relationships with PHV operators in other Member States. In particular, the Claimant has reciprocal arrangements with two companies in Paris for the supply both of private hire cars and of minicabs to the customers of those companies upon their arrival in London. The CEO of one of those companies, Cardel Limousine SARL (which supplies car hire and taxi services in the Paris region), has supplied a statement to the effect that many of his customers are regular visitors to London and are aware that black cabs are able to get round London more quickly because they are able to use the bus lanes, and that “clients are often unhappy with the prospect of sitting in traffic while black cabs speed past in the bus lanes”. Mr Maachi’s evidence is that he believes that the number of bookings his company makes with the Claimant would “increase threefold” if the Claimant were able to use the bus lanes. There is also a supportive letter from an English company.
20. Thus the Claimant asserts that there is a restriction upon its freedom to supply minicab services to European potential customers or partners, and that there is a restriction on the freedom of those potential customers to use such minicab services in London.
21. TfL is sceptical about the evidence of Mr Maachi, which originally was contained in a letter commencing “I am happy to confirm that we are unable to pass all of our work to Addison Lee in London as many of our customers are unhappy with the prospect of sitting in traffic while taxis speed past in the bus lanes”, and was only produced as a witness statement during the course of the hearing. They also suggest that the evidence of Mr Griffin exaggerates the difficulties, in particular his statement that “a journey from Kings Cross to Paddington can be up to 30 minutes quicker if the bus lanes are used”.
22. So far as the law is concerned, an actionable restriction on the freedom to provide services:
i) does not have to be discriminatory on grounds of nationality.
ii) applies to restrictions on the provision of services by a national of the home State to nationals of another Member State, as well as to restrictions on the receipt of services by the latter.
iii) can be complained of by an undertaking against the Member State in which it is established.
23. As to (i) above, see Kraus v Land Baden-Württemberg [1993] ECR I-1663 at para 32 (“even though [the measure] is applicable without discrimination on grounds of nationality”, Konsumentombudsmannen v Gourmet International Products AB [2001] ECR I-1795 at para 39 (“even if [the measure] is non-discriminatory”) and Commission v Netherlands [2004] ECR I-9761 at para 15 (“even though [the measure] is applicable without discrimination on grounds of nationality”): and as to (ii) and (iii) above see Ciola v Land Vorarlberg [1999] ECR I-2517 at para 11, Gourmet International at para 37 and Carpenter v SSHD [2002] ECR I-6279 at para 30.
24. It is common ground that there is no de minimis exception when a restriction upon one of the protected freedoms is established. However, there has been considerable dispute between the parties as to what it takes to establish such a restriction, and it revolves around the following interlinking areas:
i) TfL submits that the alleged restriction must not be (and is here) too “uncertain and indirect”, a phrase drawn from paragraph 72 of the judgment of the European Court in European Commission v Spain [2010] ECR I-5267, where a link was held to be insufficient between provisions for the cost of hospital treatment in Spain and tourism. This issue – effectively one of remoteness – did not, however, as the Claimant points out, stand in the way of success for Mrs Carpenter in the case cited above, where the European Court concluded that removal by the UK of an overstaying Philippine national married to a UK businessman was a restriction upon his business of supplying advertisements (inter alia) to purchasers in other Member States, because it deprived him of child care. Ms Demetriou submits that here there is a much closer link, on the evidence put forward by the Claimant, between the exclusion of the Claimant from bus lanes and the attractiveness of the Claimant’s services to European customers.
ii) Mr Chamberlain, for TfL, points to the words used by the Court in Ciola at paragraph 11 (“the freedom for recipients of services to go to another Member State in order to receive a service there, without being obstructed by restrictions”) and in Regione Sardegna [2010] 2 CMLR 8 (159) at para 25 (“the freedom of the persons for whom the services are intended, including tourists, to go to another Member State, where the provider is, in order to enjoy the services there”). He submits that the potential customers from Europe do not come to England in order to enjoy or receive the services of a minicab driver. They come to London, and may or may not use the taxis/minicabs while they are here.
iii) The issue is really joined on the definition of “restriction” (an issue which arises with regard to both Article 56 and Article 49). Mr Chamberlain relies upon those words in Ciola (“without being obstructed by restrictions”) and on the words of the Court in HM Customs and Excise v Schindler [1994] ECR I-1039 at para 43 (“legislation … liable to prohibit or otherwise impede the activities of a provider of services”) and in Gourmet at para 39 referring to “a measure [which] had a particular effect on the cross-border supply of advertising space”. Ms Demetriou however submits that these are words simply catering to the particular measures in issue in those cases, and she relies on the much broader formulation of the Court in Kraus at para 32 (“the Kraus rubric”), which has been regularly cited and followed, relating to a measure which “even though it is applicable without discrimination on grounds of nationality, is liable to hamper or to render less attractive the exercise by Community nationals … of fundamental freedoms guaranteed by the Treaty”: in the finding of the Court in Commission v Italy [2009] ECR I-3491 (in paragraphs 60-70) both formulations are expressed, the Kraus rubric but also (at 64) the statement that “the concept of restriction covers measures … which affect access to the market for undertakings from other Member States and thereby hinder intra-Community trade”:
Mr Chamberlain submits that, if it be right that the provisions of Article 56 are engaged, in the light of the evidence of Mr Griffin, then (and I cite his skeleton):

“35. … Article 56 would (presumably) apply to any domestic regulation that impacts on any company, provided that some of its customers are nationals of other Member States who happen to be visiting the UK.

36. This is not the law.”

He refers to the passage in Barnard: The Substantive Law of the EU: The Four Freedoms (3rd Ed) at 357-361 where she sets out what Mr Chamberlain describes as the “three categories of situation” in which Article 56 may apply, and submits that this case falls within none of those categories. Ms Demetriou submits that the categories are not intended to be exhaustive.

25. Mr Chamberlain however made the following further submission, not trailed in his skeleton argument, that Article 56 does not apply at all to the provision of minicab/taxi services. He points to Article 58 which provides, at subparagraph (1), that: “freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport”.
26. If there were any doubt as to the meaning of Article 58(1), it is removed by the decision of the European Court in Yellow Cab Verkehrsbetrieb GmbH v Landeshauptmann von Wien [2011] 2 CMLR 23 (577), which makes clear (at paragraph 29) that “it is to be stressed that free movement of services in the transport sector is not governed by art.56 TFEU, which concerns freedom to provide services in general, but by a specific provision, namely art. 58(1) TFEU”, such that in that case (relating to bus services) no claim could be pursued under Article 56, although the complaint was upheld by reference to Article 49.
27. Article 58(1) refers to Title VI TRANSPORT, of which the first provision is Article 90, stating that “The objective of the Treaties shall, in matters governed by this Title, be pursued within the framework of a common transport policy”. Article 91 provides that “for the purpose of implementing Article 90, and taking in to account the distinctive features of transport, the European Parliament and the Council shall act in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and Committee of the Regions, lay down” (by reference to the subparagraphs (a) to (d) which follow) identified common rules, common conditions, measures and other appropriate provisions. A number of Directives have been brought into force pursuant to Article 91, relating to (for example) heavy goods vehicles, but there is no Directive relating to taxi services, and since Article 100 (the last article in the Title) states that “the provisions of this Title shall apply to transport by rail, road and inland waterways”, Mr Chamberlain submits that the “common transport policy” to be created by Title VI simply does not address private vehicles: in any event, the claim by reference to Article 56 must therefore fail.
28. Ms Demetriou, while accepting that Article 58 has the effect contended for, submits that there cannot have been intended to be a lacuna relating to taxi and other similar services – what, she asks, if there were a Regulation passed in the United Kingdom which, for example, provided that non-nationals were to be charged taxi fares at a higher rate than UK residents? She points out that Regione Sardegna was a case in which the provision of private transportation services was treated as the provision of services - although the Article 58 point was not seemingly taken. She submits that Article 91 imposes a mandatory duty on the European Parliament and the Council to make provisions relating to transport, and if they have failed to do so then, if Article 56 does not apply, at the least the European law principle of Equal Treatment (referred to in paragraph 17(iii) above) applies to fill what would otherwise be a void.
Article 49: The Issues

29. Different facts are relied upon by the Claimant to seek to bring itself within the ambit of Article 49. Its case is that Addison Lee engages self-employed minicab drivers, some of whom come from other Member States. The Claimant does not keep a record of the number of such drivers, but from TfL’s own records of all PHV drivers in London it can be concluded that approximately 9% of them originate from other Member States, and Mr Griffin concludes that that is also the likely proportion of the Claimant’s own such drivers.
30. Thus it is submitted that there are, or may be, other such would-be minicab drivers in other Member States who may wish to come to the UK as self-employed minicab drivers, and who are deterred by, or, at any rate, find unattractive, the fact that they would not be able to drive in bus lanes, the consequence being, as Mr Griffin has stated in his first witness statement, that, if a journey through the congested parts of London is delayed by the minicab driver being unable to use the bus lanes, he is likely to make, and thus earn from, fewer journeys in a day. The Claimant produced, in the course of the hearing, in the light of criticisms by TfL in its skeleton as to the absence of any evidence, statements from three witnesses: two originated from Poland, one coming to the UK in July 1995 and becoming a minicab driver in 2008, and the other coming to the UK in June 2003 and becoming a minicab driver in 2005, and the other from Bulgaria, coming to the UK in 1995 and becoming a minicab driver in 1997 – none of them coming to this country for the purpose of establishing themselves as minicab driver, but all starting work as such once they were already here. They all now work for the Claimant and all of them say: “the fact that I am unable to use the bus lanes makes being a PHV driver less attractive than it otherwise would be”.
31. TfL points out that:
i) none of the three were put off. It should be added that all of them started to be minicab drivers after some years in the UK: the driver from Bulgaria may have started before the Bus Lane Policy was introduced (see paragraph 13 above).
ii) on the basis of the Claimant’s own evidence, 15% of those attending its training sessions in order to become new minicab drivers derive from other Member States (i.e. considerably over the present 9% figure).
32. The hint of a case of indirect discrimination on grounds of nationality is made by the suggestion of the Claimant, although made without any evidence in support, that, because of the need of a would-be black cab driver to take the Knowledge, which is likely to be more difficult for those from other Member States, there is a disincentive from becoming a black cab driver, and hence those from other Member States are driven to be minicab drivers (excluded from the bus lanes). However:
i) This is not pleaded, and hence not evidenced, and no evidence has been adduced on behalf of TfL to counter such a suggestion, as it plainly would have been.
i) The need to take the Knowledge to become a black cab driver does not make it more difficult, or less attractive, to be a minicab driver.
33. The second paragraph of Article 49, as set out in paragraph 17(ii) above, provides that freedom of establishment includes the right to take up and pursue activities as self-employed persons and to set up undertakings under the conditions laid down for its own nationals by the law of the country where such establishment is effected. The Claimant’s case is that there is a restriction on that freedom, albeit one which is equally applicable to those setting up as minicab drivers who are nationals of the home State: being a minicab driver in London is less attractive, as there is competition with that minority of black cab drivers who can be pre-booked and are able to use the bus lanes.
34. There is again a dispute between the parties as to the nature of the restriction which must be established. The Claimant refers to the words of the European Court at paragraph 32 of Kraus (the Kraus rubric) and of the Court in Gebhard v Consiglio dell’ Ordine degli Avvocati e Procuratori di Milano [1995] ECR I-4165 at para 37, referring to “national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty”, and again to Apothekerkammer des Saarlandes [2009] ECR I-4171 at para 22 to the preclusion of “any national measure which, even though it is applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by Community nationals of the freedom of establishment that is guaranteed by the Treaty”.
35. Mr. Chamberlain refers, in his skeleton, to Commission v Spain [2011] 2 CMLR 50 (1294), where the measures complained of “affect access to the market for undertakings from other Member States, and thereby hinder intra-Community trade” (at para 64); the measures in question affected access to the market in establishing a system under which undertakings had to be obtain a licence to undertake the economic activity in question. In this case, submitted Mr. Chamberlain, although minicab drivers have to have a licence to operate, the Claimant is not complaining about any aspect of the PHV licensing regime, but about a feature of traffic regulations which applies equally to all PHV drivers and which “realistically has no effect whatsoever on the decision whether to establish oneself as a PHV driver in London”. In each of Deutsche Shell v Finanzamt [2008] ECR I-1129 (at paras 28-29) and Commission v Italy [2011] 3 CMLR 1(1) (at paras 45-46 and 49-54), after reciting the Kraus rubric, what the Court then, in each case, addresses is undertakings being “deterred” and “access to the market being affected” or “adversely affected”.
36. However, Ms. Demetriou points out that:
ii) as Barnard makes clear, at 301, Article 49 does not only refer to access to self-employment, but also to the exercise of the occupation or profession, and, at 302, she refers to Konstantinidis v Stadt Altensteig [1993] ECR I-1191, where a Greek national, working in Germany as a self-employed masseur, was required to enter his name on the Register with an incorrect transcription of his Greek name into Roman characters, which (at paragraph 15) “causes a Greek national such a degree of inconvenience as in fact to interfere with his freedom to exercise the right of establishment”: although, in that case, it would appear that there was a considerable element of indirect discrimination on the grounds of nationality (see paragraphs 12-13 of the judgment).
iii) Ms Demetriou submits that the emphasis in the decided cases referred to above on limitations on access or deterrence has been because that was the context of the facts upon which the court was deciding the case. Hence, in Commission v Spain, the case to which Mr Chamberlain referred in his skeleton, whereas the impugned measure was found to be one which did “affect access to the market … and thereby hinder intra-Community trade” (para 64), the Court nevertheless reached the conclusion that:
“70.​Consequently, the contested legislation, taken as a whole, has the affect of hindering or rendering less attractive the exercise by economic operators from other Member States of their activities on the territory of … Catalonia, through a permanent establishment and thus affecting their establishment in the Spanish market.”

Equal Treatment

37. There is no dispute that this principle (set out in paragraph 17(iii) above) is one of the general rules of European law, but there is dispute as to its precise ambit.
38. It applies when a national authority seeks to derogate from one of the freedom of movement provisions (ERT [1991] ECR 1-2925 esp. at 41-43), but that would in any event be the case where the freedom of movement provisions themselves are (as they were in that case) engaged. It is also common ground that, even if no specific Treaty provision is engaged, the principle can apply to a national measure where it falls within the scope of EU law. Thus, in Phil Collins [1993] ECR I-5147, the Court held that German rules on the protection of copyright were within the scope of Community law, such rights having been long regarded (paragraphs 22-27) as, by their nature, such as to affect trade in goods and services, and thus to fall within the scope of application of the Treaty. The suggestion by Laws J (as he then was) in First City Trading Ltd [1997] 1 CMLR 250, that there might be a difference in the application of the principle dependent upon whether there was or was not an applicable provision of the Treaty was doubted by Richards J (as he then was) in British Pig Industry Support Group (27 July 2000, QB at paras 63-65), and is certainly not embraced by Lawrence Collins LJ in Partridge Farms Ltd v Secretary of State for the Environment [2009] EWCA (Civ) 284 at para 61. Ms Demetriou relied upon the fact that in Herbert Karner Industrie Auktionen GmbH v Troostwijk GmbH [2004] ECR I-3025 the Court concluded that the particular freedom of movement provision did not apply because of a specific exception (para 43 of the judgment), but nevertheless concluded (at paragraph 48) that “according to settled case law, fundamental rights form an integral part of the general principles of law, the observance of which the Court ensures”.
39. I have little doubt in the circumstances that, if Article 56 does not apply, but only because of the effect of Article 58, then the ‘void’ would be filled by reference to the principle of Equal Treatment: it is odd that this was not stated in Yellow Cab (referred to in paragraph 25 above), but that is no doubt because it did not need to be argued, since Article 49 was available.
40. Mr. Chamberlain submits that, if the Equal Treatment principle is engaged, the test for justification is clearly spelt out in the authorities. In Société Arcelor Atlantique et Lorraine [2008] ECR 1-9895 at paras 46-47, the Court concluded that the principle of Equal Treatment would not be infringed if the different treatment were justified and “a difference in treatment is justified if it is based on an objective and reasonable criterion … if the difference relates to a legally permitted aim pursued by the legislation and it is proportionate to the aim pursued by the treatment”. In First City Trading, Laws J, in drawing the distinction with Wednesbury unreasonableness, stated at para 68 that:
“Within the diverse contexts in which the principle of equality may be called in question, there will no doubt always be a range of options factually open to the decision-maker. It is not the court’s task to decide what it would have done had it been the decision-maker … In the nature of things it is highly unlikely that only one of the choices available to him will pass the test of objective justification: and the Court has no business to give effect to any preference for one possible measure over another when both lie within proper legal limits. In this sense, it may be said that the decision-maker indeed enjoys a margin of appreciation.”

Justification

41. I turn to justification, and to the parties’ respective cases. The seminal passage, in the context of the freedom of movement provisions, is contained in Gebhard at para 37. Four conditions must be fulfilled:
“They must be applied in a non-discriminatory manner;

they must be justified by imperative requirements in the general interest;

they must be suitable for securing the attainment of the objective which they pursue;

and they must not go beyond what is necessary in order to attain it.” [The last condition effectively enshrining the principle of proportionality.]
It is clear that the categories of justification are not closed (see Alpine Investments BV v Minister van Financiën [1995] ECR I-1141 at para 44 and Analir v Administración General del Estado [2003] ECR I-1271 at para 27).
43. The issue between the parties, however, has been as to the ‘intensity’ or the ‘strictness’ with which the test of justification, in respect of which it is common ground the onus lies in this case upon TfL if there is found to be a restriction which otherwise infringes, must be applied.
44. The same test must in my judgment apply in respect of the freedom of movement provisions as by reference to the Equal Treatment principle: it would be odd to have differing ‘levels of intensity’ and Ms Demetriou did not argue for them.
45. In R (Countryside Alliance and Others) v Attorney-General [2008] 1 AC 719 at para 49, Lord Bingham set out paragraphs 28 to 31 of the judgment of the European Court in Omega Spielhallen-und-Automatenaufstellungs GmbH v Oberbürgersmeisterin der Bundesstadt Bonn [2004] ECR I-9609 prefacing his quotation by the words “The test of justification under Community law is a strict one and is subject to the overall control of the ECJ”:
“30. … The concept of ‘public policy’ in the Community context, particularly as justification for a derogation from the fundamental principle of the freedom to provide services, must be interpreted strictly, so that its scope cannot be determined unilaterally by each member state without any control by the Community institutions … Thus, public policy may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society …

31. The fact remains, however, that the specific circumstances which may justify recourse to the concept of public policy may vary from one country to another and from one era to another. The competent national authorities must therefore be allowed a margin of discretion within the limits imposed by the treaty.”

46. Mr Chamberlain submits that the justification he is here putting forward is not one of public policy, and does not therefore qualify for the strictness (though still subject to the margin of discretion) there referred to. He relies on the words of the Court of Appeal in Mabanaft Ltd v Secretary of State for Energy [2009] EWCA (Civ) 224, per Arden LJ, dealing with a requirement under a 2006 Directive that Member States must ensure that fair and non-discriminatory conditions apply in relation to stock-holdings of crude oil and other products:
“32. However, in my judgment, the obligation imposed by the first sentence of art 3(2) confers freedom on the member states to choose the method by which they will comply with their obligations under the 2006 directive. It follows under Community law that the court must allow the Secretary of State a large measure of discretion in choosing an appropriate method. In reviewing the legality of the exercise of such discretion, the court must limit itself to examining whether the decision of the Secretary of State discloses a manifest error or constitutes the misuse of powers or there has been a clear disregard of the limits of his discretion. This is because under community law, where the decision maker in the member state is required to evaluate a complex economic situation – and the same would apply to a complex technical situation as here – the intensity of the review is low. The decision-maker will enjoy a large measure of discretion and the court will limit itself to asking [whether] the assessment is manifestly unreasonable. The court will not substitute its judgment for that of the decision-maker.

…

48. In any assessment of proportionality in a technical field, the court must allow a proper margin of discretion to the decision-maker, because of the complexity of the assessment he is called upon to make in this field.”

47. Ms Demetriou, for her part, submits that this weighing up in relation to traffic conditions, if that is what is here involved, is not a complex economic or technical decision.
48. In Partridge Farms, Lawrence Collins LJ recorded, at paragraph 89, that “it was held by the judge, and is common ground on this appeal, that, like Community institutions, Member States have a broad margin of appreciation in terms of objective justification”. Mr Chamberlain refers to two judgments of the Court, both since Omega:
iv) Commission v Italy [2009] ECR I-519 (“Italian Trailers”), where the issue related to provisions with regard to pulling of trailers by certain vehicles including motorcycles:
“66.​In the present case, the Italian Republic contends … that the circulation of a combination composed of a motorcycle and a trailer is a danger to road safety. Whilst it is true that it is for a Member State which invokes an imperative requirement as justification for the hindrance to the free movement of goods to demonstrate that its rules are appropriate and necessary to attain the legitimate objective being pursued, that burden of proof cannot be so extensive as to require the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions.

67.​Although it is possible, in the present case, to envisage that measures other than the prohibition laid down in … the Highway Code could guarantee a certain level of road safety … the fact remains that Member States cannot be denied the possibility of attaining an objective such as road safety by the introduction of general and simple rules which will be easily understood and applied by drivers and easily managed and supervised by the competent authorities.”

v) In Commission v Spain, referred to in paragraphs 35 and 36(ii) above, the Court stated, at paragraph 75, that:
“It should be recalled that, although it is for the Member State relying on an overriding reason in the public interest as justification for a restriction on freedom of movement to demonstrate that its legislation is appropriate and necessary to attain the legitimate objective pursued, that burden of proof cannot be so extensive as to require the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions.”

49. There was some discussion before me as to whether the party with the obligation to justify the restriction can rely on what is called “ex post facto justification”, ie reasoning that was not put forward, or even considered, when the restriction was imposed. I do not consider that in fact this issue arises here, given what is said about the purpose of the Bus Lane Policy, but, even if it did, it is now clear that the test for the Court is objective justification, and that, particularly where the alleged restriction is ongoing and must be justified for the future as well as for the past, the Court has an obligation to consider all matters, even if it might place less weight upon an argument if it appeared to have been put forward belatedly, not for that reason, but because it might not carry the same credibility as if it had always been in mind. Such issues are canvassed in Belfast City Council v Misbehavin’ Ltd [2007] 1 WLR 1420, per Lord Mance at 44-48, and in Seldon v Clarkson Wright & Jakes [2012] ICR 716 at paras 59-60, in particular at 59, where Baroness Hale expressly said: “the aim need not have been articulated or even realised at the time when the measure was first adopted: it can be an ex post facto rationalisation”. Inevitably, more evidence, often including factual analyses and surveys, is put forward to seek to justify a provision once it is challenged. In this case, some evidence has been put forward by TfL as referred to in paragraph 15 above, but it is not relied on by them as anything other than very broad-brush, supportive of the case set out by Mr Plowden, and, as is clear from the Italian Trailers case (at paras 63 to 67), where there was no survey evidence at all, such is not necessary if the justification can speak for itself. In any event, insofar as the SKM Report is relied upon, and insofar as it sets out a new or supplementary case, in addition to the English authorities referred to there are the clear words of the European Court in Schönheit v Stadt Frankfurt am Main [2003] ECR I-12575 “a difference in treatment … may be justified, depending on the circumstances, by reasons other than those put forward when the measure introducing the differential treatment was adopted.”
50. TfL makes the following case in justification of its Bus Lane Policy:
vi) Congestion. The 5.8 million bus passengers every weekday amount to 2.3 billion a year: according to a 2011 study, the majority of visitors to London town centres on shopping trips use the bus. TfL seeks to balance the needs of all the different road users, and so far as bus passengers are concerned they measure, and seek to reduce, “Excess Wait Time”. Mr Plowden states as follows in his first witness statement:
“41. TfL locates bus lanes where congestion would otherwise increase bus journey times and/or reduce reliability. This applies both to the overall decision where to concentrate bus lanes (in central and inner London, where congestion is most acute) and to the decision where to locate individual lanes (e.g. at particular junctions).

42. Bus lanes are also particularly useful because they offer protection to vulnerable road users, i.e. cyclists and motorcyclists … These categories of user are permitted to use the bus lanes during the hours of operation of the restrictions, offering them protected road space during the busiest and most congested times of the day.

43. Finally, bus lanes are widely supported in London. TfL’s customer research report on bus priority from 2009, ‘Attitudes to Bus Priority Schemes’ … indicated that 83% of the public support bus priority schemes.”

There is then an exception whereby black cabs are permitted to use the bus lanes, the rationale being explained in the TfL Public Carriage Office Taxis and Bus Lanes Policy Guidance:

“2. The Mayor has stated that TfL’s general policy should be to allow taxis in all bus lanes except where specific safety or bus operational issues made this impractical.

3. This policy applies for the purposes of taxis driving in bus lanes as through-routes and entering bus lanes to pick up and set down. ‘Pick up’ and ‘set down’ mean that there is an intended passenger waiting at the kerbside or that an existing passenger wishes to be set down.”

The 2009 survey of taxi cabs referred to in paragraphs 9 and 13 above records that 52% of journeys are picked up by being hailed in the street, 34% picked up from ranks and 8% are pre-booked.

According to the SKM Report, travel time increases for bus passengers during the morning peak hour (8.00-9.00 am) by a total of 266 person hours as a result of allowing taxis in the bus lanes, but by 431 person hours if minicabs are also included. The Report then uses a method conventional in transport planning, to attribute monetised values to journey times, and to calculate, by reference to estimated busloads and a standard calculation of loss per bus passenger per hour of £9.92, a lost benefit (disadvantage) to passengers of £671,000 in the Congestion Charging Zone and Inner Ring Road areas resulting from the use of bus lanes by black cabs, but a substantially increased loss of £1,140,000 if black cabs and minicabs are so permitted. Quite apart from these statistics, TfL submit that it is obvious that the disadvantage to bus passengers if both black cabs and minicabs are allowed in the bus lanes (73,000 additional vehicles) will amount to a “markedly greater disbenefit to bus passengers” than that caused by 23,000 black cabs alone. In any event, the SKM figures are, as Mr Plowden points out, average figures, and delays will be greater in some locations, certainly those most congested.

vii) The distinction between black cabs and minicabs. TfL emphasised the real difference between them. Black cabs alone can be hailed for pick-up on the streets. Thus there is the need for them to be more easily visible, in the lane nearest the pavement, and for there to be ease of access from the pavement when they are flagged down. Minicabs are not permitted to be hailed off the street. This, TfL submit, is not simply a question of safety of access, but of having the would-be passengers on the pavement and the taxis adjacent to pavements. TfL’s policy documents make clear that the disabled are a priority for TfL, not just in relation to the fact that the black cabs are (while the minicabs are not) required to be adjusted for wheelchairs, but also in respect of accessibility from the pavement to a cruising black cab. TfL submits that, whereas there is thus a specific distinction to be made between black cabs and minicabs, if minicabs were allowed into bus lanes, there would then be no apparent or justifiable distinction between minicabs and other vehicles – chauffeured cars (in which the Claimant also deals), hire cars, Car Club vehicles, delivery vehicles, heavy goods vehicles and all private cars.
viii) Enforcement. TfL relies on the difficulty of enforcement if the less identifiable minicabs are allowed in the bus lanes. Whereas there are some identifying factors on a minicab sufficient for the police or cameras to pick them up, there is always the risk that other drivers will not be able to identify a minicab in a bus lane, and will assume that it is a private vehicle and – for example in areas where bus lanes have variable hours and not always sufficient notices identifying the hours – that the bus lane does not apply and they are free to follow the minicab into the bus lane.
ix) Compellability and maximum fares. TfL points out that black cabs, unlike minicabs, are subject to compellability (explained in paragraph 12(ii) above) and are limited by maximum fares. Minicabs do not have that disadvantage. Although they have fixed fares rather than metered fares, they can estimate those fares so as to make allowance for anticipated delays through congestion.
x) Environment. There was I think a misunderstanding about this. The reliance by TfL upon the environment was, it made clear, by reference to the existence and desirability of bus lanes themselves rather than to any suggestion, by reference to emissions or otherwise, that black cabs were in some way more favourable to the environment than minicabs.
51. The Claimant meets this case, upon which the onus lies on TfL, as follows:
x) Congestion. As set out in paragraph 15 above, little or no time was spent orally on any critique of the SKM Report. Rather Ms Demetriou’s case was that the SKM figures do not show that there is any material addition by way of delay or expense to bus passengers by adding the 50,000 extra PHVs to the bus lanes. The increase in disadvantage to bus passengers is in percentage terms not much higher than 2% and on some calculations less than 1%. The Claimant submits that there should have been more persuasive statistics, whose absence was recognised in Familiapress v Heinrich Bauer Verlag [1997] ECR I-3689, although I refer to what I have said in paragraph 48 above and to Italian Trailers there referred to.
x) Competition. The Claimant relies on the competition between minicabs and those (8% or so) black cabs who also pre-book.
x) Disability. The Claimant points out that according to a 2002 report (Attitudes of Disabled People to Public Transport), 79% of wheelchair users “plan their journey in advance”, which Mr Griffin interprets as pre-booking either a minicab or a black cab. He states that the number of wheelchair users seeking to hail a cab from a road which has a bus lane is likely to be very low, and comments accordingly that the relevance of the issue of disability for TfL’s Bus Lane Policy is “vanishingly small”.
x) Distinction between black cabs and minicabs. Ms Demetriou, in her skeleton argument in paragraph 89, states as follows:
“It is important to note, at the outset, that the Claimant does not in any way challenge TfL’s claims as to the importance of buses generally, and bus lanes specifically, to London’s transport system. The improvement in journey time for bus passengers is the reason why bus lanes are there in the first place, and the reason why certain classes of vehicles are excluded from those lanes during certain hours of the day. The proposition that allowing more vehicles into bus lanes will to some extent slow down the traffic in those lanes (at least at certain times of the day) is an obvious one. What is far from obvious is why that proposition should justify an arbitrary selection of permitted vehicles by TfL, with the effect of causing blatant (and undisputed) discrimination between the two categories of transport operators that are (again it is not disputed) in direct competition.”

x) Enforcement. Mr Griffin points out that, in addition to the rear sticker, which must be fixed on the outside of the glass on the bottom right-hand side of the rear windscreen, minicabs also have a sticker on the outside of the glass on the right-hand side of the front windscreen, and that this enables minicabs to be clearly distinguishable from private cars, certainly on police or traffic enforcement photographs.
x) Compellability and maximum fares. Ms Demetriou points out that there is no evidence as to the burden caused to taxicabs by these obligations, nor any reason why providing black cabs with access to bus lanes is a necessary and proportionate response to any such burden.
52. So far as proportionality is concerned, the Claimant suggests other alternative courses which TfL could take:
x) If it is considered vital not to prejudice bus lanes, then that policy could lead to neither black cabs nor minicabs being permitted into the bus lanes, and thus the competitive advantage of those black cabs who are pre-booked would be eliminated.
x) Black cabs could be permitted to enter bus lanes on the same basis as minicabs, i.e. to pick up and set down only.
x) Bus lanes could be reserved for buses only during peak travel hours, permitting both black cabs and minicabs to use the bus lane at other times.
x) Black cabs and minicabs could use bus lanes only when carrying passengers.
53. As to these, TfL answers as follows:
x) This would not have the public benefit of visibility of and access to black cabs, which is not necessary for minicabs.
x) This suggestion, like the first, does not address the need for visibility of, and access to, cruising taxis.
x) TfL responds that bus lanes are intended only to be operational during the hours when affording priority to buses is considered necessary.
x) This suggestion is actually the reverse of the real purpose of allowing black cabs in the bus lanes, i.e. that the benefit for the public, and the advantage to their safety, is to have empty cabs, i.e. cabs for hire, in the bus lanes, and the suggestion would again not meet the visibility and access requirements referred to above.
Conclusions with regard to Articles 49, 56 and Equal Treatment
54. With regard to Article 56, I am satisfied that, for the reasons set out in paragraphs 25 to 27 above, Article 58 has the effect that Article 56 does not apply, and that the complaint relating to restriction on the freedom to provide services does not arise. I am however satisfied, given that this is a case in which, but for the provisions of Article 58, Article 56 would have applied, that, in accordance with what is set out in paragraph 28 above, the principle of Equal Treatment does apply, and I shall return to this below.
55. As to Article 49, the case must be looked at with common sense. I have noted the three belated statements from existing minicab drivers in the Claimant’s fleet. None of them say that they were in any way affected, either in relation to coming to the UK to set up as minicab drivers (because none of them did), or in relation to their wanting to become minicab drivers, which they did some time after coming to the UK and which all have continued to be (in the case of one of them for the last 15 years). Notwithstanding those statements, I am satisfied that there is nothing which suggests that the fact that all minicab drivers (including those 91% who do not come from other Member States) have any difficulty with exercising their profession, or regard their occupation as rendered unattractive. There is no limitation upon their licence, no limitation upon their right to charge what fares they wish (taking into account travelling through congested areas otherwise than in bus lanes). I am wholly unpersuaded that this traffic restriction has any relevance at all to freedom of establishment. I conclude that this has simply been the attempt to mount a challenge to a London traffic regulation by turning it into a “Euro-point”, and I am wholly unpersuaded by it.
56. I turn to Equal Treatment. The complaint is that in an area where a national rule falls within the scope of EU law, even if no specific Treaty rule has been engaged, comparable situations have been treated differently, i.e. minicabs have been treated differently from black cabs. In this regard I must turn to consider my conclusions as to justification – which in any event I would do, in case I have erred in my approach to the case under Article 49 (or indeed 56).
57. I am not considering the justification for the bus lanes themselves, or their environmental advantages, or the convenience of bus passengers, but the justification for the Bus Lane Policy, including the exception which includes within bus lanes black cabs and excludes minicabs.
58. I do not consider that such distinction is justified because – or as some kind of quid pro quo for the fact that – black cabs bear some public service obligations in relation to compellability etc.
59. Although there is some force in the point made by TfL with regard to enforcement or copycat following of minicabs into the bus lane, I conclude that that is a problem which could be resolved, if necessary by a new and stricter requirement for clearer identification of minicabs, so that they can be more easily differentiated by the public from private vehicles.
60. As to the statistics provided by the SKM Report, issues as to materiality can cut both ways – materiality as to the asserted additional disadvantage to bus passengers of additional vehicles in the bus lane, and materiality as to the asserted disadvantage to minicabs by their not being permitted into the bus lanes. But I do not decide the case by reference to any conclusion drawn, partial or rough and ready though they may be, from those statistics, or to the materiality of the disadvantage suffered by bus passengers, although I can see the force of TfL’s point that there is bound to be additional disadvantage if 50,000 extra vehicles are allowed into the bus lane. I do, however, note particularly what Ms Demetriou herself says, in paragraph 89 of her skeleton, which I have set out in full at paragraph 51(iv) above, and the conclusion she invites the reader to draw is based upon the suggestion that what is sought to be justified is an “arbitrary selection of permitted vehicles by TfL”. I am entirely satisfied that it is not arbitrary:
x) There is to my mind a clear distinction between the need of black cabs (and their passengers and the public) for them to be in the bus lanes, by way of visibility and availability of, and access to, black cabs for those hailing a cruising taxi. I do not reach this conclusion simply or mainly by reference to the disabled – though there are many people who are disabled, but are not in wheelchairs, and, even on the identification of disabled with wheelchair users and accepting Mr Griffin’s premise set out in paragraph 51(iii) above, there would still be 21% of wheelchair users who may not pre-book. I am certainly not persuaded that the problem for the disabled of hailing a taxi which is not in a lane adjacent to the pavement is “vanishingly small”. In any event, from the point of view of the public generally, I consider it makes entire good sense for black cabs to be travelling in bus lanes. Minicabs just do not have the need to use the bus lane, and black cabs do.
i) The fact that 8% of black cab journeys are pre-booked and therefore in competition with minicabs does not seem to me to affect that conclusion. It would clearly not be possible to legislate that those black cabs could not use the bus lane when carrying a pre-booked passenger.
ii) It seems to me entirely clear that there is an objectively justifiable ground for distinction between black cabs and minicabs in relation to the use of the bus lane. If however the exception were to be extended to include minicabs, which do not have that same justification, then I cannot see any further stopping point, any further rational distinction between them and the other vehicles progressively listed in paragraph 50(ii) above. It would be the ‘thin end of the wedge’, but one of some importance because it would immediately jeopardise the priority for buses in the bus lanes.
61. I reach this conclusion by way of objective consideration. If I needed to consider the ‘margin of appreciation’ of TfL I would conclude that their Bus Lane Policy fell within it. For the avoidance of doubt:
i) I am content to adopt the same test as if I were addressing a restriction on freedom of movement, though I do not conclude that there is a difference between that and the test applicable in consideration of the general principle of equal treatment in EU Law (see paragraphs 40 to 48 above).
ii) I do not consider that there is either a question of public policy or a complex economic or technical question. The reasoning for the Bus Lane Policy, including its exception, is obvious and compelling.
62. As to the suggestion of other courses that could have been taken, I do not conclude (see paragraphs 40 and 48 above) that the availability of other solutions renders unjustifiable the conclusion to which TfL has come. But, in any event, I agree with the criticisms made by Mr Chamberlain, set out in paragraph 53 above: none of them are viable.
63. Therefore, addressing the requirements for justification, the four conditions in Gebhard, set out in paragraph 41 above, are plainly satisfied. Insofar as minicabs and black cabs have been treated differently, their situations are not comparable and, in any event, such treatment is objectively justified. Insofar as, contrary to my conclusions, there is a restriction falling within Articles 56 or 49, the restriction would be similarly justified.
Wednesbury Reasonableness

64. I was referred to the words of Stanley Burnton J (as he then was) in Middlebrook Mushrooms Ltd v The Agricultural Wages Board of England and Wales [2004] EWHC 1447 (Admin) which was an example of the application of the test of Wednesbury reasonableness to a case of alleged unreasonable treatment (of mushroom pickers). For the reasons set out above, I am entirely satisfied that the inclusion of black cabs but exclusion of minicabs was not Wednesbury unreasonable.
State Aid/Article 107: The Issues

65. The facts on which the claim under Article 107 is based are those set out in paragraphs 18 and 19 above, in respect of which, because of the clear effect of Article 58, I have not had to make any findings with regard to Article 56. By reference to them, Ms Demetriou submits that there is an effect on trade between Member States, because would-be European customers, who are coming to London, are, as Mr Maachi asserts, reluctant to take minicabs because of the fact that they cannot drive in bus lanes, such that they prefer to use the services of black cabs.
66. Derived from Article 107, set out in paragraph 17(v) above, there are the following requirements for State Aid in this context:
i) It confers an economic advantage.
ii) It must be granted by a Member State or through state resources.
iii) It must distort or threaten to distort competition by favouring certain undertakings.
iv) It must affect trade between Member States.
The live issues have revolved around (iii) and (iv).

67. The Claimant contends that there is favouring of black cabs, and that it distorts competition between minicabs and those black cabs who can pre-book (Radio Taxis) and that this affects trade between Member States.
68. With regard to (iv), TfL points to the words of Advocate-General Jacobs in GEMO SA [2003] ECR I-13769 at para 145 of his Opinion, where he referred to taxi services as being one of those economic sectors where aid might not affect trade between Member States; but Ms Demetriou understandably submits that such dictum cannot possibly be material where I actually have to decide that issue, and she differentiates two Commission decisions, that in case No. 543/2001, Ireland: Allowances for Hospitals and Case No. 377/2007, Bataviawerf as relating to obviously local matters (local hospitals and a local museum respectively). With regard to effect on trade between Member States, Mr Chamberlain relies on Remia BV v EC Commission [1987] 1 CMLR 1 (a case concerning what is now Article 101 TFEU) at 22, where the Court stated:
“… the Court would point out that, as it has consistently held, in order that an agreement between undertakings may affect trade between Member States it must be possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or fact, that it may have an influence, direct or indirect … between Member States, such as might prejudice the realisation of the aim of a single market in all the Member States.”

69. Mr Chamberlain submits that the European customers, to which Mr Griffin refers, travel to London in any event (it is not suggested they are deterred from coming) and what is suggested is that they may, once they have come, use different transport in London. Intra-state trade is unaffected.
70. With regard to (iii), this depends upon resolution of the dispute as to the “Selectivity requirement”, referred to in paragraph 17(v) above, namely whether the measure is favouring black cabs in a way that is not justifiable by the nature or the general scheme of the Bus Lane Policy imposed pursuant to the Regulations.
71. Ms Demetriou relies upon paragraph 40 of the judgment of the Court in Heiser v Finanzamt Innsbruck [2005] ECR I-1627:
“[Article 107] requires it to be determined whether, under a particular statutory scheme, a State measure is such as to favour ‘certain undertakings or the production of certain goods’ in comparison with others which, in the light of the objective pursued by the system in question, are in a comparable legal and factual situation.”

72. The Claimant contends that minicabs and black cabs are in a comparable legal and factual situation. As recited in Commission v Netherlands Case C-279/08 (8 September 2011) “it is for the Member State which has introduced such a differentiation … to show that it is actually justified by the nature and general scheme of the system in question.” In that case, and in Portugal v Commission [2006] ECR I-7115, the onus was not satisfied.
73. Both parties rely on the recent decision of the European Court in British Aggregates Association v Commission Case T-210/02 RENV (7 March 2012), in which, at para 47, the Court addresses the need to consider whether a state measure is such as to favour certain undertakings “in comparison with other undertakings in a comparable legal and factual situation in the light of the objective pursued by the measure concerned”. This effectively approves and repeats the simple statement of the Court in Adria-Wien Pipeline v Wieterstorfer & Pettauer Zementwerke [2001] ECR I-8365:

“According to the case-law of the Court, a measure which, although conferring an advantage on its recipient, is justified by the nature or general scheme of the system of which it is part does not fulfil that condition of selectivity.”

In the event, the tax advantages given to the relevant producers were not held to be justified by the relevant statutory scheme.

74. Mr Chamberlain submits that the favouring of the black cabs, which alone are permitted to ply for hire, over the minicabs, which are not, is plainly justified as an important part of TfL’s Bus Lane Policy and within its statutory function, referred to in paragraph 3 above, of “promoting and encouraging safe, integrated, efficient and economic transport facilities and services to, from and within London.”
Conclusion as to Article 107
75. I am not satisfied that the Bus Lane Policy which permits black cabs and excludes minicabs within TfL’s bus lanes, even though it may have an impact on competition between minicabs and those black cabs who can be pre-booked, affects trade between Member States. However, if I were wrong in that regard, I am satisfied that such measure does not offend against the Selectivity principle. It is exactly in accordance with the nature and general scheme of the Bus Lane Policy imposed pursuant to the Regulations to allow into the bus lanes those vehicles which can ply for hire and exclude those who cannot. I am satisfied that minicabs and black cabs are not in a comparable legal and factual situation in the light of the objective pursued by the measure concerned.

Result
76. For all these reasons the Claimant’s application is dismissed.

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Mr Justice Eder:

Introduction

1 The present proceedings are part of a wider dispute between the parties concerning the use of bus lanes in London which, in effect, come within the control of the claimant (“TfL”). As appears below, that dispute is currently the subject of judicial review proceedings which commenced last year and are yet to be determined.

2 The second defendant Addison Lee (“AL”) operates a fleet of over 3,500 private hire vehicles (“PHVs”) and 200 chauffeur driven Mercedes Benz and BMW cars. At almost five times the size of its nearest competitor, AL is Europe’s largest private hire fleet. Mr Griffin is the founder and Chairman of AL which he established in 1975 as a private car hire business. The third defendant (“Eventech”) is a wholly owned subsidiary of AL from which AL’s self-employed drivers rent their vehicles.

3 The essence of the dispute appears from a notice (the “Notice”) which was sent on or about 14 April 2012 by Mr Griffin on behalf of AL to its drivers in the following terms:
“Addison Lee Driver Notice
Dear Driver,
The director of Addison Lee plc believes that the current bus lane regulations, which allow London Black Cabs to use the bus lanes but prohibit private hire from doing so is illegal as it discriminates against Private Hire Operators and drivers who offer a competing taxi service.
We also believe that it denies the public freedom of choice as journey times in the bus lanes are much quicker that those outside the lanes.
Our legal advice in this matter is that bus lane requirements are currently being misinterpreted to exclude PHV’s from bus lanes. Such misinterpretation is unlawful in the following respects.
a. It is in breach of European rules relating to the freedom of establishment and freedom to supply services.
b. It infringes the general EU principal of equal treatment.
c. It infringes the English common law principles of equality before the law.
d. It denies free and fair competition in providing an unfair advantage to one group of commercial operators over others.
Addison lee has sought and been granted a judicial review on this issue which is due to be heard by the end of the year. In the meantime Addison lee believes that we cannot allow our customer to continue to be victims of this unfair discriminatory treatment.
As chairman I can advise you that a lawful interpretation of the bus lane regulations entitles Addison lee drivers with private hire identifies to use all bus lanes in the same way as our competitors. Accordingly you are fully entitled to use the bus lanes.
We can confirm that entry into the bus lanes is not an endorsable offence and that we will indemnify all Addison lee drivers from any fines or other liabilities that may result from using the bus lanes as a result of this advice.
Should any conflict arise between yourself and any black taxi operator please be patient, make a note of any details and use your camera where possible.
Signed
John Griffin
Chairman, Addison Lee plc”

The application
4 On 16 Aril 2012, TfL issued an application notice for injunctive relief in effect seeking an interim injunction (a) requiring AL to withdraw the Notice and (b) restraining Mr Griffin, AL and Eventech from repeating such conduct and, in particular, instructing or encouraging its drivers from using London bus lanes. Meanwhile, on the same day i.e. 16 April 2012, AL issued a press release (the “press release”) in the following terms:

“Addison Lee Instructs Drivers to use Bus Lanes

Apr 16, 2002

Chairman John Griffin Instructs Drivers to Use Bus Lanes Pending a Judicial Review

John Griffin, founder and chairman of Addison Lee, the UK’s largest minicab company, has today issued a letter to Addison Lee’s 3,500 minicab drivers, instructing them to use the bus lanes. Addison Lee will indemnify its drivers from any fines or payments that result from this action – potentially £1,000 per offence.”

At the same time, the press release was also posted on AL’s website where it remained until, at least, the commencement of this hearing on 23 April.
5 Prior to the commencement of this hearing, TfL indicated that it would not pursue the relief sought in paragraph (a) above but, instead, would seek other relief; and the defendants indicated that they would be prepared to give certain undertakings which were as follows:

“(i)​The Defendants will remove forthwith from the website of the Second Defendant the press release, dated 16 April 2012, entitled ‘Addison Lee Instructs Drivers to use London Bus Lanes’, a copy of which is appended to this Schedule.
(ii)​The Defendants, and each of them, until [​], will not instruct any private hire vehicle driver to use bus lanes marked for use by taxis during the hours when restrictions apply, save to pick up or set down passengers.
(iii)​The Defendants, and each of them, until [​], will not repeat the offer made by the First Defendant, by letter dated 14 April 2012, offering to pay any fines or other penalties incurred by private hire vehicle drivers as a result of contravening legislation governing the use of bus lanes.”
6 Notwithstanding these undertakings, TfL has pursued its claim for additional interim relief, the precise form of which changed in the course of the hearing. At the commencement of the hearing, Mr Chamberlain on behalf of TfL provided a draft of the relief sought which was, in essence, as follows:

“The Defendants, and each of them, be restrained until [​] from:
(a) ​encouraging or causing or permitting any private hire vehicle driver to use bus lanes marked for use by taxis during the hours when restrictions apply, save to pick up or set down passengers;
(b)​discharging, or reimbursing any person in respect of, any fines or liabilities incurred for contravention of legislation governing the use of bus lanes on or after 23 April 2012.”
7 In the course of argument, I indicated to Mr Chamberlain that I considered that there were, at the very least, considerable difficulties with the formulation of the relief sought in paragraph (b) above; and he indicated to the Court that in any event he would wish to reformulate paragraph (a) to bring it into line with previous correspondence from TfL. In the event, after the short adjournment, Mr Chamberlain produced a further redraft of the relief sought which was in two parts (ie an injunction and an interim declaration) and was, in material part, in the following terms:

“Prohibited Acts
The Defendants, and each of them, be restrained until determination by the Administrative Court of the judicial review proceedings in claim CO10424/2011 or further order from:
(a) ​causing, encouraging or assisting any private hire vehicle driver to use bus lanes marked for use by taxis during the hours when restrictions apply, save to pick up or set down passengers; or
(b)​communicating to any person that they will discharge, or reimburse any person in respect of, any fines or liabilities incurred for contravention of legislation governing the use of bus lanes on or after 25 April 2012, whether pursuant to the indemnity contained in the Addison Lee Driver Notice of 14 April 2012 or otherwise.
Declaration
There be an interim declaration pursuant to CPR r. 25.1(1)(b) that the indemnity given in respect of fines and other liabilities incurred as a result of contravention of legislation governing the use of bus lanes in the Addison Lee Driver Notice of 14 April 2012 (and repeated subsequently) is void and unenforceable as respects contraventions of that legislation occurring after 14 April 2012.”

Urgency
8 On behalf of TfL it is said that the application is urgent because, unless relief is granted, there is a likelihood that the defendants’ conduct:
(i) will cause some of AL’s PHV drivers to commit breaches of the criminal law, exposing them to prosecution;
(ii) will cause serious difficulties to TfL, the police and the appeals mechanism in enforcing and adjudicating upon large numbers of contraventions of traffic legislation;
(iii) will cause confusion among other PHV drivers and motorists as to the status of existing traffic regulations relating to bus lanes; and
(iv) will cause congestion and may lead to traffic disruption on London’s roads.

The legislative background
9 TfL is a statutory corporation, created by s. 154 of the Greater London Authority Act 1999 (“the 1999 Act”). TfL has a duty, under s. 154(3) of the 1999 Act, to exercise its functions to facilitate the Greater London Authority’s discharge of its general transport duty (namely, its duty under s. 141 to secure the provision of safe, integrated, efficient and economic transport facilities and services to, from and within Greater London). It has a power under para. 32 of Sch. 11 to the 1999 Act to do “all other things which in its opinion are necessary or expedient to facilitate the discharge by it of any of its functions”.
10 Pursuant to s. 253 of and Sch. 20 to the 1999 Act, TfL is responsible for the licensing of hackney carriages (also known as “taxis” or “black cabs”) in London. Pursuant to s. 254 of and Sch. 21 to the 1999 Act, it is responsible for the licensing of PHVs (also known as “minicabs”) in London.
11 Under section 121A(1A) of the Road Traffic Regulation Act 1984 (“the 1984 Act”), TfL is the traffic authority for all GLA roads. GLA roads are defined in sections 329(1) and 14D of the Highways Act 1980. In essence, they are the most important roads in London.
12 As traffic authority, TfL is empowered, under s. 6 of the 1984 Act, to make orders for controlling or regulating vehicular and other traffic on the roads for which it is the traffic authority. TfL has made a large number of such traffic regulation orders (“TROs”) designating certain traffic lanes as bus lanes.
13 The effect of these TROs is that only those vehicles that are prescribed may use the designated bus lanes. TfL’s general policy regarding the designation of taxis and PHVs is as follows:
(i) For most bus lanes, taxis are allowed both to use the bus lane as a through-route and to pick up or set down passengers.
(ii) For most bus lanes, PHVs are allowed to enter the bus lane to pick up or set down passengers. They are not allowed to use the bus lane as a through-route.
14 The TROs designate the vehicle types that are allowed to use the bus lane in question. Many of them designate “taxis” as permitted vehicles. These TROs define “taxi”, by reference to reg. 4 of the Traffic Signs Regulations and General Directions (TSRGD), as follows (so far as material in England & Wales):
…a vehicle licensed under
(i) section 37 of the Town Police Clauses Act 1847; or
(ii) section 6 of the Metropolitan Public Carriage Act 1869
or under any similar enactment.
15 For present purposes the defendants accepted or at least did not dispute that the relevant sections of the Town Police Clauses Act 1847 and the 1869 Act refer to hackney carriages that are licensed to ply for hire; that within London Black Cabs are licensed to ply for hire but PHVs are not; and that on this basis the effect of current legislation, on its face, is that bus lanes are designated for use by taxis, but not PHVs.
16 Section 8(1) of the 1984 Act reads as follows:
Any person who acts in contravention of, or fails to comply with, an order under section 6 of this Act shall be guilty of an offence.
17 The offence created by s. 8 is triable summarily. The maximum penalty is a level 3 fine (currently £1,000): see para. 1 of Sch. 2 to the Road Traffic Offenders Act 1988 (the 1988 Act). The offence is also designated as a “fixed penalty offence” (see s. 51 and Sch. 3 to the 1988 Act), which means that offenders are offered the opportunity to discharge any liability to conviction by payment of a fixed penalty.
18 TfL and London local authorities also have powers of civil enforcement in respect of such contraventions: see Part II London Local Authorities Act 1996 and associated legislation.

TfL and London local authorities also have powers of civil enforcement in respect of such contraventions: see Part II London Local Authorities Act 1996 and associated legislation.

The dispute
19 As noted above, the defendants accept or at least do not dispute that, “on its face”, the legislation governing the use of bus lanes draws a distinction between taxis and PHVs. However, it is the defendants’ case that this distinction is contrary to EU law and irrational.
20 On 28 October 2011, Eventech filed a judicial review claim challenging on those grounds the decision of the Parking Adjudicator to reject its appeal against two Penalty Charge Notices (“PCNs”) issued by Camden London Borough Council to AL PHVs for contravening the bus lane legislation. The Parking Adjudicator indicated that he did not intend to make submissions. Camden did not file Summary Grounds. TfL had not been served and so could not do so itself. It accordingly applied to be added as an Interested Party. That application was granted by Mr Michael Kent QC sitting as a Deputy High Court Judge on 2 March 2012. At the same time, he also granted Eventech permission to apply for judicial review. In doing so, he made these observations:
“The Defendant understandably does not wish to take an active part in these proceedings but opposes the grant of permission without giving reasons. Transport for London who I have only added as an Interested Party as part of this Order have necessarily not filed an Acknowledgement of Service or summary grounds of defence. I do not therefore have any reasoned opposition to the grounds put forward on behalf of the Claimant. These grounds appear at first sight surprising in suggesting that EU law has any bearing on the lawfulness of traffic restrictions of the sort under challenge but the matter is clearly important to the Claimant and needs to be resolved. For that reason I give permission without first ordering summary grounds of defence to be filed by the Interested Party who should however serve details grounds for contesting the claim as provided for below.” (Emphasis added.)
21 Procedural directions were then given, but these did not include setting the claim down for hearing. Ordinarily that would be done only after detailed grounds for defending the claim had been filed. In this case, there was no application in the Claim Form for expedition and, until recently, it had never been suggested that the resolution of the challenge was urgent.
22 On the present hearing, there was some debate as to the underlying merits in relation to the judicial review proceedings. On behalf of TfL, Mr Chamberlain accepted that the issues raised in the judicial review proceedings were “arguable” although he submitted that the terms in which permission was granted to Eventech hardly constituted a ringing endorsement of its claim. He also accepted that it would not be appropriate to embark on a detailed consideration of Eventech’s arguments in the judicial review claim although he submitted that it was more likely than not that TfL would succeed and that insofar as may be necessary I should proceed on that basis.
23 In contrast, Ms Demetriou QC on behalf of the defendants submitted that the present regime constituted flagrant discrimination in favour of black cabs and against PHVs; that this gave black cabs a significant unfair competitive advantage causing PHV drivers serious loss; that so far as AL and its drivers were concerned, such loss was estimated to be of the order of £12.5m per annum; and that such loss would be heightened in the run-up to the Olympic games. Further, Ms Demetriou QC submitted that the effect of the present regime was to damage AL’s ability to do business both in this country and abroad. In that context, she referred in particular to the decision of the House of Lords in Regina (Countryside Alliance and Others) v A-G [2008] 1 AC 719. In summary, Ms Demetriou QC submitted that the defendants had a strong case on the merits and, at the very least, TfL could not show that it was more likely than not that it would succeed in the judicial review proceedings.
24 In the event, it seems to me both unnecessary and undesirable at this stage for me to express any view on the merits save to say that (i) as is common ground, the effect of the legislation is on its face as I have stated above and (ii) the case advanced by Eventech in the judicial review proceedings is, at least, arguable.

The legal position in relation to interim relief in judicial review proceedings
25 It is well established that a party challenging domestic legislation as incompatible with EU or otherwise ultra vires is entitled to seek interim relief to suspend the operation of the challenged legislation pending the determination of the claim; see R v Secretary of State for Transport ex p. Factortame (No. 2) [1991] 1 AC 603, per Lord Goff at 672-674. The test for the grant of interim relief is the same whether the challenge is brought under EU law or domestic law. As to the application of that test, Lord Goff said this at 673:
…if a public authority seeks to enforce what is on its face the law of the land, and the person against whom such action is taken challenges the validity of that law, matters of considerable weight have to be put into the balance to outweigh the desirability of enforcing, in the public interest, what is on its face the law, and so to justify the refusal of an interim injunction in favour of the authority, or to render it just or convenient to restrain the authority for the time being from enforcing the law.
He continued as follows at 674:
…the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken.
26 Interim relief is not limited to injunctive relief. As submitted by Mr Chamberlain, it was open to Eventech, for example, to seek an interim declaration as to the way in which the TROs should be interpreted pending the outcome of the challenge: see CPR Part 25.1(1)(b). There is no indication that the principles applicable to the grant of such a declaration differ from those applicable to interim injunctions. Indeed, “[a]s a practical matter, in most instances an interim injunction will achieve the same objective as an interim declaration”: White Book, para. 25.1.15.
27 Thus, Mr Chamberlain submitted that Eventech’s advisers were, it may be assumed, aware of the hurdles they would have to surmount if they were to obtain interim relief to suspend or “read down”, pending the outcome of the challenge, “what is on its face the law of the land”. At any rate, they chose, for whatever reason, not to seek any such relief.

The defendants’ conduct since 2 April 2012
28 The recent background to the present application is as follows.
29 On Monday 2 April 2012, Mr Griffin telephoned TfL’s Director of Taxis & Private Hire, John Mason, to inform him that he intended on 9 April to issue to AL’s drivers a written instruction that they should use bus lanes marked for use by taxis and that he intended to issue this instruction in writing on Monday 9 April. Mr Griffin confirmed this intention in another telephone call on Wednesday 4 April.
30 Howard Carter, TfL’s General Counsel, emailed Mr Griffin on the evening of Wednesday 4 April warning him that drivers failing to comply with bus lanes legislation would be committing a criminal offence and warning him of the possibility of proceedings seeking injunctive relief. Mr Carter invited Mr Griffin to confirm, by noon on Thursday 5 April, that he would not be issuing an instruction along the lines intimated. No such confirmation was given. Mr Mason therefore telephoned Mr Griffin shortly after 12 noon on Thursday 5 April to enquire whether he had received the letter and whether he intended to respond. Mr Griffin confirmed that he had received the letter and would not be responding. He said (as Mr Mason recalls):“I’m ready. All I’ve got to say is ‘bring it on’.”
31 In the light of this indication, Caroline Moore, TfL’s Head of Public & Regulatory Law, sent an email to Mr Griffin on the afternoon of Thursday 5 April to indicate that TfL was considering its next steps, which might include an urgent application for interim injunctive relief.

Within an hour of that email, Julian Maitland-Walker, a Partner in Maitland Walker LLP (who act for the defendants), emailed Ms Moore in these terms:
“Thank you for your email dated 5 April (16:59) addressed to my client, John Griffin of Addison Lee.
I write to confirm that I am instructed to act on behalf of John Griffin and Addison Lee in this matter.
We shall be considering the points raised by Mr Carter in his letter dated 4 April 2012 with Counsel early next week and will let you have a response in due course.
In the meantime I can confirm that the letter of instruction/advice which my client plans to send to his drivers will not go out unless and until we have responded to Mr Carter’s letter.”
33 On the same evening (Thursday 5 April), Ms Moore replied for TfL in these terms:
“It had been our intention to issue an application for interim injunctive relief imminently. However, on the basis of your email, we will not do so pending your client’s response and on the clear understanding that we will be provided with at least 48 hours to consider your letter of response before your client takes any further action in relation to his instruction/advice; please confirm that this will be the case.
Please note that I am out of the office next week, as is Howard Carter, and this matter will be handled by my colleagues Andrea Clarke and Abbey Ameen, copied in to this email.” (Emphasis added.)
34 The Easter weekend then intervened.
35 On the first working day after the Easter weekend, Tuesday 10 April, Maitland Walker for the first time filed on Eventech’s behalf an Application for Urgent Consideration in the judicial review claim, seeking an order that the claim be expedited and heard by the end of June 2012. Draft case management directions were attached, including a direction that TfL should file its detailed grounds and evidence by 1 May. The reasons for supporting the application included these:
“Key events in 2012 such as the 2012 Olympics and the Queen’s Diamond Jubilee will significantly increase the number of visitors to London and the UK, increasing the competitive disadvantage the claimant suffers as a result of the legislation and harming its financial performance and commercial operations.
In a letter dated 4 April 2012 (copy attached), Transport for London (TfL) indicate that if the drivers use the bus lanes in London that black cabs are currently permitted to use before the substantive judicial review hearing, TfL might apply to the court for interim injunctive relief to restrain a threatened breach of the criminal law.”
36 It can be seen from the above that Eventech were saying to the Court that the judicial review claim should be expedited because:
(i) they were going to lose money if the claim were not heard quickly; and
(ii) they had been threatened with proceedings for an injunction if they did not so comply.
Mr Chamberlain submitted that this necessarily implied that Eventech recognised that it would have to comply with the legislation in the interim; and that, if the defendants had been intending at that stage to advise their drivers not to comply with the relevant legislation, the application for expedition would have been misleading in a fundamental respect and improper. Be that as it may, there was certainly no indication at that stage of any intention by the defendants to instruct AL’s drivers to use bus lanes.
37 TfL received a copy of Eventech’s Application for Urgent Consideration and proposed directions on Wednesday 11 April.
38 At 16.51 on Friday 13 April, Maitland Walker sent a faxed letter dated 12 April, addressed to Mr Carter (but not to Ms Clarke or Mr Ameen), responding to the substance of Mr Carter’s letter of 4 April. Maitland Walker argued that, since Eventech’s claim for judicial review was to the effect that TROs which refer to “taxis” should be interpreted as applying also to PHVs, it was not arguing that the TROs were unlawful; so there was no need for it to seek interim relief to suspend them; and AL and Mr Griffin were fully entitled to advise their drivers to this effect. Reference was made to AL’s and Mr Griffin’s rights to freedom of expression under Article 10 ECHR.
39 The letter was stamped as received by TfL Legal administrative staff on 13 April, but not seen by Mr Carter (who, as Maitland Walker had been specifically advised, was on leave) or by any other lawyer. It came to the attention of TfL’s lawyers on the morning of 16 April.
40 At 15.04 on Saturday 14 April, Mr Maitland-Walker emailed Ms Moore, replying formally to her last email of 5 April. Mr Maitland-Walker’s email was in these terms:
“Thank you for your email. I write to confirm that we will give you at least 48hours [sic] notice prior to our client taking further action in relation to the proposed letter to the Company’s drivers.”
41 No mention was made of the letter that had been faxed on the previous day. There was no reference to when, in Maitland Walker’s view, the 48 hour period would expire.
42 Shortly after that, on the afternoon of Saturday 14 April (on any view less than 48 hours after receipt of Maitland Walker’s fax), Mr Mason started to receive calls from taxi drivers suggesting that, contrary to the express assurance given by Mr Maitland-Walker, AL had in fact already sent out the Notice to its PHV drivers advising them that they could drive in bus lanes. (The terms of the Notice are set out above.) Mr Mason then telephoned Mr Griffin to ask whether this was true. Mr Griffin confirmed that it was. TfL learned of the contents of the Notice from a taxi driver who had procured a copy of it.
43 It is right to say that the Notice does not in terms instruct drivers to use bus lanes. However, as submitted by Mr Chamberlain, five points may fairly be made about this Notice:
(i) It gives unequivocal advice to AL’s PHV drivers that “you are fully entitled to use the bus lanes”.
(ii) It advises that contravention of bus lane legislation “is not an endorsable offence” without pointing out that it is a criminal offence in respect of which individual drivers remain personally liable to prosecution.
(iii) It offers AL’s PHV drivers an indemnity “from any fines or other liabilities that may result from using the bus lanes as a result of this advice” without giving any indication about whether such an indemnity would be valid or binding.
(iv) It envisages that the actions which it encourages AL’s PHV drivers to take may give rise to “conflict” between them and black cab operators, albeit it encourages them to be “patient” in that event.
(v) It is signed by Mr Griffin in his capacity as Chairman of AL.
44 At 23.42 on Saturday 14 April, Andrea Clarke, TfL’s Director of Legal, sent Mr Maitland-Walker an email in these terms:
“Thank you for your email and confirmation that your client will give at least 48 hours notice prior to taking further action in relation to the proposed instruction to drivers to drive in bus lanes which on its own terms was helpful.
However, shortly after receiving your email Mr Mason received information that a notice has already been issued to Addison Lee drivers to take effect on Monday 16 April. Mr Mason telephoned Mr Griffin at approximately 7.15pm this evening to ask if such a notice had been issued to drivers and Mr Griffin indicated that this was the case. Since this time Mr Mason has received a copy of the attached signed notice apparently issued by your client to its drivers.
It would therefore appear that contrary to your express assurances (on the basis of which my client decided not to seek interim relief during the Easter Holiday) a notice has in fact been issued.
Please revert by return by no later than noon on Sunday 15 April indicating whether:
(a) you are still instructed on this matter;
(b) our understanding is correct that a notice has been issued to drivers as described above; and
(c) if a notice has been issued, your client will undertake to immediately withdraw the notice sent and agree not to reissue any further instruction/advice without providing at least 48 hours prior written notice.
The events of this evening are particularly difficult to understand in light of your client’s application during the course of last week for an expedited hearing in respect of the judicial review proceedings which specifically referred to your client losing profits as a result of complying with the PHV licensing regime in its current form and the possible injunctive relief that might be sought from my client in respect of the above.
It appears that for the second weekend in a row that your client is proposing unilateral action without going through the appropriate process which is causing serious and irresponsible disruption to the PHV licensing regime.
I look forward to hearing from you.”
45 On Sunday 15 April, TfL issued a notice by email to those registered to receive such emails warning PHV drivers that, if they drove in bus lanes, they would be committing a criminal offence and, if they did so repeatedly, they may be liable to regulatory action on the ground that they were no longer fit to hold a licence.
46 On Monday 16 April, at 08.29, Ms Clarke sent an email to Mr Maitland-Walker noting that she had not received a reply to her email of 14 April and indicating that TfL intended to issue proceedings for injunctive relief.
47 Mr Maitland-Walker replied at 10.10 indicating that:
(i) his client (AL) had sent its drivers a letter posted on Saturday 14 “on the basis that it would be received by the drivers by post this morning, well after the expiry of the agreed period of 48 hours following our substantive response to Howard Carter’s letter”;
(ii) his client (AL) restated its position that it was “fully entitled to advise drivers as it sees fit”;
(iii) the suggestion that this action would cause any significant disruption to the road network was disputed.
48 As to the terms of the Notice, Mr Griffin explained his position in paragraph 48 of his first witness statement:
“My letter does not instruct our drivers to do anything. No pressure is being put on drivers to use bus lanes. It is entirely a matter for each driver whether or not they do so and drivers who choose not to use the bus lanes will not be subject to any disciplinary action or disadvantage. They remain free as they always have to choose whether to use bus lanes or not.”

49 Nevertheless, as stated above, on Monday 16 April, AL issued the press release which I have already quoted and which on its face instructed its drivers to use the bus lanes.
50 In a recording shown on ITV’s London Tonight on 16 April, Mr Griffin was pictured in the rear passenger seat of an AL vehicle (registration LR11 KVL), saying to the driver:

“OK, driver, I’d like you to go into the bus lane now and I will indemnify you against any fines or any activities. This is not an endorsable offence and any money you are charged I will pay”.

The reporter then says:

“An extraordinary instruction from the passenger in the back – break the law. The driver does as he is told. The passenger is his boss, John Griffin, head of the UK’s biggest minicab firm.”

The recording shows the driver doing as instructed and driving in the bus lane, on what appears to Mr Mason, in his Second Witness Statement to be Euston Road.

51. The Times reported as follows on 16 April:
“John Griffin, the founder of Addison Lee, wrote to his 3,500 drivers telling them to use the restricted lanes and promising to pay any fines incurred.”

52. The Guardian reported as follows on 16 April:

“London cab firm drivers told to defy bus lane law

…

London’s biggest minicab company and Transport for London (TfL) are on collision course after the company’s chairman instructed his 4,000 drivers to defy the law and use bus lanes.”

53. ITV News reported as follows on 17 April:
“John Griffin instructed Addison Lee drivers to use the lanes and he would pay any fines they incurred.”

54. The Telegraph said this on 19 April:
“John Griffin, chairman and founder of Addison Lee, has written to its 3,500 drivers in London instructing them to use the bus lanes and promising to indemnify them against any fines they incur.”

55. The Independent said this on 19 April:
“London’s leading minicab firm has instructed its drivers to risk fines of up to £1,000 by using the capital’s bus lanes.”

56. In addition to the foregoing, Mr Chamberlain relies on the fact that if the position was indeed that AL and Mr Griffin were not instructing AL’s drivers to use bus lanes then at no stage did they seek to correct the press release or any of the above reports. Further, Mr Chamberlain also relies on the defendants’ public statements (as reported) about the effect and purpose of the Notice. In particular:
(i) On 16 April, The Evening Standard reported as follows:

“A spokesman for Addison Lee, Britain’s biggest minicab firm with 3,500 drivers, said ‘several hundred, if not thousands’ of minicabs had entered the lanes this morning.

He added: ‘We do about 500 to 600 jobs an hour through central London. We estimate about 60 to 70 per cent are using the bus lanes when they have passengers.’”

(ii) On 17 April, The Daily Telegraph said:

“A spokesman for Addison Lee said the company decided to reignite debate this week in an effort to speed up its latest legal challenge.”

(iii) Also on 17 April, The Sun reported:

“[Mr Griffin’s] latest move is designed to speed up the outcome of a judicial review on the use of the capital’s bus lanes.”

(iv) On 18 April, The Guardian reported as follows:

“A spokesman for Addison Lee said the firm expected to receive ‘hundreds if not thousands of tickets by the end of the week’.”

(v) On 20 April, The Guardian reported as follows, on the basis of an interview with JG on Wednesday 19 April:

“By Thursday lunchtime, Griffin’s exhortation to his drivers to barge in on the black cabs’ territory had resulted in about two dozen Addison Lee drivers being issued with penalty charge notices for using the bus lanes. More drivers got away with it because of a lack of enforcement cameras, the company said.

So far, the extent of the bus lane disobedience has not extended to the ‘hundreds if not thousands’ of minicab drivers the firm had expected, which Steve McNamara, general secretary of the Licensed Taxi Drivers Association (LTDA) regarded as “summing up Addison Lee drivers’ lack of confidence in John Griffin’s plan”.

Not true, said Griffin, who believes that many others will join in when they realise that his offer to cover their fines is genuine and that the company’s lawyers are primed to fight TfL in the courts. They will argue that the current ruling keeping private hire vehicles out of the bus lanes is anti-competitive and breaches English and European principles of equality before the law.

‘I am ready to rock,’ Griffin told the Guardian on Thursday at Addison Lee’s bustling Euston headquarters, where operators pore over banks of screens as if they were air traffic controllers.”

57. Meanwhile, on the evening of 15 April, TfL issued its own Notice 05/12, warning PHV drivers that they must not drive in bus lanes marked for use by taxis making clear to them that, if they did so, they would be committing a criminal offence and warning them that, if they committed repeatedly contraventions of traffic regulations, their fitness to hold a PHV driver’s licence might be called into question. In light of continuing and increasing direct communications from members of the public, TfL issued a second Notice 06/12 confirming TfL’s position and updating the public as to what TfL was doing in response to AL’s actions.
58. TfL’s own data on number of contraventions since 16 April 2012 are set out below. However, the following should be noted. First, as explained by Mr Mason in his witness statements, the roads for which TfL is traffic authority (some 580 km) do not by any means amount to all the bus lanes in London; and TfL does not have reliable figures for bus lane contraventions from other traffic authorities. Second, although there was comment in the press apparently from AL’s spokesman that more drivers “got away with it” because of a lack of enforcement cameras, this was disputed by Mr Mason. However, he accepted that not every inappropriate use of a bus lane will result in a PCN.

Table 1: PCNs

Date

Addison Lee

Other PHVs

Total

16.04.2012

1

Not available

1

17.04.2012

2

Not available

2

18.04.2012

16

Not available

16

19.04.2012

16

3

19

20.04.2012 (until 14:30)

25

12

37

Table 2: FPNs

Date

Addison Lee

Other PHVs

Total

16.04.2012

6

1

7

17.04.2012

0

5

5

18.04.2012

0

1

1

19.04.2012

0

0

0

20.04.2012

(before 10:00)

4

-

-

Criminality on the face of the legislation

59. As stated above, the defendants accept or at least do not dispute that, on the face of the legislation, it is an offence for a PHV driver to drive in a bus lane marked as available for use by taxis. Any PHV driver who does so would, on the face of the legislation, commit a criminal offence contrary to s. 8 of the 1984 Act.
60. Anyone who does an act capable of encouraging or assisting the commission of an offence intending to encourage or assist its commission himself commits an offence pursuant to s. 44 of the Serious Crime Act 2007, unless he can avail himself of the defence of “acting reasonably” pursuant to s. 50 of that Act.
61. In Drake v Morgan [1978] QB 56, Forbes J had to consider whether a union could lawfully indemnify its members in respect of fines imposed for criminal offences. It held on the facts that the union could do so, but only because the indemnity had been given after the criminal offences had been committed. Forbes J said this at 60-61:
“While there may be nothing untoward in one man agreeing to pay another’s fine after the offence is committed, it seemed to me that an agreement to indemnify a man against any fines he might incur in the future if he pursued a certain course of conduct was open to the gravest of objections.
Both counsel agree that there is no decided authority on this point and this does not surprise me, because it seems to me almost self-evident. To say effectively: “Go out and picket. Never mind if you commit an offence. We will pay your fine,” is in all probability incitement to commit an offence, and certainly aiding, abetting, counselling or procuring one.”
62. Forbes J’s reasoning was followed by Scott J (as he then was) in Thomas v National Union of Mineworkers [1986] QB 20, at 77. Scott J held that the resolution in that case, to indemnify members who might commit offences while on the picket line against any fines imposed, was contrary to public policy and void. Although the terms of the order made in that case do not appear from the report, it appears that Scott J was prepared to grant an injunction restraining the South Wales union from making any payment pursuant to that resolution.
63. It was Ms Demetriou QC’s submission that the indemnity contained in the Notice was not unlawful and that the authorities relied upon by TFL are inapplicable because, in particular, they concern indemnification in respect of action which indisputably amounted to a criminal offence whereas the present case is plainly in a different category. In particular, she submitted that the basis for the claim for judicial review is that the TROs are unlawful and that their breach does not therefore amount to a criminal offence; and that TFL’s submissions therefore beg the very question raised by the claim for judicial review (and which would be raised as a defence to any criminal prosecution against the defendants for issuing the Notice). Further, she submitted that, as TFL accepts, the defendants would have a further defence of “acting reasonably” under s.50 of the Serious Crime Act 2007; and that it follows that, if prosecuted under s.44 of that Act, they could rely by way of defence on their reasonably held belief that the TROs were unlawful even if their EU law defence were rejected.

In my judgment, these submissions suffer from a number of flaws which it is unnecessary to examine in detail. However, it seems to me that the fundamental flaw is that the indemnity given in the Notice covers “..any fines or other liabilities that may result from using the bus lanes as a result of this advice..” If Eventech succeeds in the judicial review proceedings, there will be no valid and enforceable fines or other liabilities. Thus, the indemnity can only sensibly apply in circumstances where an offence has been committed and therefore is contrary to public policy and void.
65. For his part, Mr Chamberlain accepted that although the indemnity given was void, there was nothing unlawful per se in AL in fact paying a fine incurred by one of its drivers after such fine had been imposed or other liability incurred provided at least that such payment was not made pursuant to an earlier indemnity. In light of the above, it is, in my judgment, appropriate to grant the interim declaration sought by Mr Chamberlain subject to the additional wording by way of clarification requested by Ms Demetriou QC and agreed by Mr Chamberlain viz.

“The indemnity given in respect of fines and other liabilities incurred as a result of contravention of legislation governing the use of bus lanes in the Addison Lee Driver Notice of 14 April 2012 (and repeated subsequently) is void and unenforceable as respects contraventions of that legislation occurring after 14 April 2012.

However, any decision of the Defendants, taken in a particular case after a fine has been imposed or other liability incurred for contravention of the legislation governing the use of bus lanes, to discharge, or reimburse any person in respect of such a fine or liability, would be lawful.”

66. In the course of the hearing, Ms Demetriou QC also indicated that the defendants would be prepared to give an undertaking to the court in a form similar to the injunction sought in paragraph 1(b) of the draft submitted by Mr Chamberlain but with additional words of qualification. This was subsequently confirmed in the undertaking proffered by Ms Demetriou QC on behalf of the defendants being in the following terms:
“The Respondents will not communicate to any person, in advance of a fine or liability being incurred by such person for contravention of legislation governing the use of bus lanes on or after 25 April 2012, that they will discharge or reimburse such fine or liability whether pursuant to the indemnity contained in the Addison Lee Driver Notice of 14 April 2012 or otherwise.”

67. In my judgment, such undertaking in such terms is satisfactory and, on that basis, it is not necessary to grant the order sought in paragraph 1(b) of the draft.
68. That leaves the remaining important issue between the parties ie TfL’s application for an injunction to restrain the defendants from “causing, encouraging or assisting any private hire vehicle driver to use bus lanes marked for use by taxis during the hours when restrictions apply, save to pick up or set down passengers.”
Vague and Imprecise
69. Ms Demetriou QC raised a threshold point viz that it was a fundamental principle that any injunction should be clear, precise and unambiguous in particular because it was important that a defendant should know exactly what he/she can and cannot do; and that the formulation of the wording of the injunction now sought by TfL failed this test. I agree that there is a general principle that an order must be expressed in unambiguous language: see, for example, Gee, Commercial Injunctions, 5th Edition, para 4.001-4.003 and CPR Part 25 PD Para 5.3. However, the proposed injunction tracks the wording in the standard form “Application for an Injunction”. Ms Demetriou QC submitted that this was irrelevant for two main reasons. First, it was always necessary to consider the suitability of the standard wording in a particular context; and here the context rendered such wording unsuitable and inappropriate. Second, the standard wording applies only where the defendant is himself being ordered not to do an act. I agree that it is always important to consider the context of particular wording but I do not consider that the present context renders the standard wording unsuitable or inappropriate. Further, the words “encourage or assist” are also used in the definition of the offence created by s.44 of the Serious Crime Act 2007. In my judgment, if those words are sufficiently precise to define an offence (which is the relevant offence), they are sufficiently precise to be included in the present injunction.

The Court’s jurisdiction to grant injunctive relief to prevent conduct that is, on the face of it, a breach of the criminal law
70. As submitted by Mr Chamberlain, it is well established that, in appropriate circumstances, public authorities are entitled to claim injunctive relief to prevent breaches of the criminal law: see eg Lewis, Judicial Remedies in Public Law, 4th ed., paras 8-41 et seq.
71. It is equally well established that subordinate legislation is presumed to be valid unless and until set aside by a court: see eg de Smith’s Judicial Review, 6th ed., para. 4-061; Hoffmann La Roche & Co. AG v Secretary of State for Trade and Industry [1975] AC 295, per Lord Diplock at 366:
“[The courts’] jurisdiction to determine that a statutory instrument is ultra vires does not arise until its validity is challenged in proceedings inter partes either brought by one party to enforce the law declared by the instrument against another party or brought by a party whose interests are affected by the law so declared sufficiently directly to give him locus standi to initiate proceedings to challenge the validity of the instrument. Unless there is such challenge and, if there is, until it has been upheld by a judgment of the court, the validity of the statutory instrument and the legality of acts done pursuant to the law declared by it are presumed.” (Emphasis added.)
72. It had previously been argued that injunctive relief should not be granted where the defendant had an arguable substantive defence, based on EU law. That argument was roundly rejected by the House of Lords in Kirklees BC v Wickes Building Supplies Ltd [1993] AC 227, a case in which a local authority sought and obtained injunctive relief to enforce the Sunday trading legislation at a time when a challenge to that legislation was before the European Court of Justice. Lord Goff said this at 270-271:
“It would be startling if the mere fact that the defendant invoked a Community law defence, with sufficient substance (but no more) to escape rejection under the narrowly drawn principle of acte clair, should be capable of itself of excluding this useful jurisdiction, thus providing encouragement to those seeking to profit from law-breaking activities to adopt this method of prolonging what may prove to be a source of illicit profit. However, I am unable to accept Mr. Collins’s submission [for the defendant]. I know of no authority which supports it. There are cases in which an interlocutory injunction has been granted, despite the fact that the defendant was raising a defence to the alleged crime. In Portsmouth City Council v. Richards (1988) 87 L.G.R. 757 , the Court of Appeal upheld the grant of an interlocutory injunction restraining the operation of sex shops, despite the fact that the defendant had raised a defence under article 30 of the Treaty. In City of London Corporation v. Bovis Construction Ltd., 86 LGR 660, the Court of Appeal upheld the grant of an interlocutory injunction restraining a breach of the Control of Pollution Act 1974, notwithstanding an alleged defence invoked by the defendant which had not been disposed of. Furthermore, the submission of Mr. Collins ignores the fact that, since an injunction may be granted in an emergency to restrain an infringement of the law, for example the cutting down of a tree in breach of a tree preservation order (see, e.g., Newport Borough Council v. Khan (Sabz Ali) [1990] 1 W.L.R. 1185 ), it may well be impossible in such circumstances to resolve the issue of a possible defence on the application for an interlocutory injunction. Mr. Collins sought to accommodate such cases by recognising them as an exception to his suggested rule. I cannot think that this is right. The power to grant injunctions, which now arises under section 37 of the Supreme Court Act 1981, is a discretionary power, which should not as a matter of principle be fettered by rules. In my opinion, the existence of an alleged defence is a matter to be taken into account in the exercise of the court’s discretion, when deciding whether it is just and convenient that interlocutory relief should be granted.”
73. The House of Lords went on to hold that the courts below had been wrong to refuse injunctive relief and that the question whether to require the enforcing authority to give an undertaking in damages was a matter for the court’s discretion.
74. Although Ms Demetriou QC did not dispute that the Court had jurisdiction to grant a civil injunction in support of the criminal law in an appropriate case, she submitted that the facts in Kirklees were very different in particular because there had in that case been a history of flouting the criminal law (ie a background of deliberate, flagrant and repeated breaches over a substantial period) and the penalties that had been imposed had proved wholly inadequate: that was very different from the present case. Further, there were, she submitted, a number of factors which militated strongly against the grant of injunctive relief in the present circumstances and indeed led to the conclusion that it would be inappropriate to grant the relief sought by TfL.
Freedom of Expression
75. First, Ms Demetriou QC submitted that the grant of the relief sought would constitute a serious interference with Mr Griffin’s and AL’s freedom of expression guaranteed by Article 10(1) ECHR. Further, Ms Demetriou QC submitted that two consequences follow from this:
a. S.12 of the Human Rights Act 1998 applies. S.12(4) provides that the Court “must have particular regard to the importance of the Convention right to freedom of expression”. S.12(3) provides that no relief “is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”. It follows from this that the:
“…..general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably (‘more likely than not’) succeed at trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion… But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal”: Cream Holdings Ltd v Banerjee [2004] UKHL 44, at [22].”

b. The Court should not grant the relief sought unless it is satisfied that to do so would meet the requirements of Article 10(2) ECHR, namely that the draft injunction order is sufficiently clear to satisfy the requirement that it is “prescribed by law” and that the injunction is “necessary in a democratic society to prevent disorder or crime or to protect the rights and freedoms of others”.
76. In particular, Ms Demetriou QC submitted, in summary, as follows:
a. TfL must show that the conduct sought to be restrained constitutes a contravention of s.44 of the Serious Crimes Act and consequently (i) that it is more likely than not to establish that the TROs are compatible with EU law; and (ii) that it is more likely than not that a defence of “acting reasonably” would fail.
b. The evidence and submissions filed by TFL in support of its application establish neither.
c. On the contrary, it is highly unlikely that a defence under s.50 of the Serious Crimes Act would fail given the reasonably held belief of the defendants that the TROs are invalid and that their breach does not therefore give rise to a criminal offence.
d. TFL has failed to establish that it more likely than not that the TROs are compatible with EU law. Indeed, they have not yet advanced any plausible justification for their discriminatory treatment of black cabs and PHVs. The main explanation provided by Mr Mason in his witness statement for why PHVs are excluded from bus lanes is that it is necessary to limit the total number of vehicles using those lanes (para. 23 of his statement). This comes nowhere near to providing an objective justification for treating black cabs and PHVs differently. TFL could limit the number of vehicles in bus lanes by excluding black cabs from them too and thereby removing the distortion of competition between black cabs and PHVs.
e. There are no exceptional circumstances in the present case that would serve to lower the threshold. On the contrary, the consequences of the Notice are in no way “particularly grave” given that it will not necessarily lead to the commission of any criminal offences.
77. In considering these submissions, I should make plain that TfL expressly accepted that Mr Griffin and AL can still say, to the media or otherwise, that they believe their interpretation of the relevant bus lane legislation is correct and will prevail; that the current distinction, drawn on the face of that legislation, between taxis and PHVs is unjustified; and that they can lobby central Government, local authorities and TfL to seek to change the relevant bus lane legislation. Thus, the injunction sought does not and is not intended to restrain any such conduct. Nevertheless, Mr Chamberlain accepted that the injunction sought does restrict the defendants’ freedom of expression and that Article 10(1) ECHR is thereby engaged. However, Mr Chamberlain submitted that such restriction at least in the form of the injunction now sought was in reality “minimal” and not inconsistent with the ECHR.
78. I accept, of course, that pursuant to s.12(4) of the Human Rights Act 1968, the court must have particular regard to the importance of the Convention right to freedom of expression. However, as Ms Demetriou QC accepted, Cream Holdings does not lay down a “hard-edged” test. As Lord Nicholls makes plain both in the passage cited above and elsewhere in his speech (see, in particular, paragraph 20), the wording in s.12(3) Human Rights Act 1968 does not mean that the test of “more likely than not” is of universal application. As stated above, I have refrained from embarking on an evaluation of the underlying merits and proceed on the basis that Eventech’s case in the judicial review proceedings is “arguable”. In my judgment, the correct approach is as stated by Lord Diplock in Hoffman La Roche ie that the present legislation is presumed to be valid but that, as stated by Lord Goff in Kirklees, the existence of the alleged defence is a matter to be taken into account in the exercise of the court’s discretion when deciding whether it is just and convenient that interlocutory relief should be granted.
Necessary/just and convenient
79. I also accept that Ms Demetriou QC’s submission in relation to Article 10 ECHR had much force in the context of the terms of the original injunction sought by TfL. However, the position has now changed. In particular, TfL has abandoned its application requiring the defendants to withdraw the Notice; and the defendants have now proffered the undertakings referred to above. Further, although the injunction now sought is significant it is in more limited form and, in effect, is seeking to prohibit conduct which would (at least potentially) constitute a criminal offence. In that more limited form and given the circumstances of the case, the injunction sought is, in my judgment, (a) necessary within the meaning of Article 10 ECHR in particular for the prevention of crime and to protect the rights and freedoms of others; and (b) in the exercise of my discretion, just and convenient in the circumstances of the present case.
80. In reaching that conclusion, I bear in mind in particular the following matters:
a. Despite protestations to the contrary (including an assertion in Ms Demetriou QC’s skeleton argument that, and I quote, “Mr Griffin has not instructed his drivers to use the bus lanes”), it seems to me plain that Mr Griffin and AL have, in effect, been characterising the Notice sent to AL’s PHV drivers on 14 April as an “instruction”.
b. The video clip showing Mr Griffin instructing one of his drivers to go into the bus lane and offering to pay any money the driver may be charged is the clearest possible evidence of Mr Griffin’s willingness to risk flouting the law.
c. AL’s press release, headed “Addison Lee Instructs Drivers to use London Bus Lanes”, remained on its website until at least the commencement of the hearing on 23 April although Ms Demetriou QC told the court on instructions that Mr Griffin himself was unaware that this was the case. Be that as it may, as appears above, drivers will have read, seen and heard the media coverage (including the video clip), which is clear that an “instruction” has been given.
d. PCNs recorded for bus lane contraventions up to 1400 on Friday 20 April totalled about 75, of which 60 were AL vehicles. Although these numbers are small, they show an upward trend.
e. Mr Griffin and AL have embarked on a media campaign throughout last week to encourage as many as possible of their PHV drivers to use bus lanes, including by apparently exaggerating the number of contraventions.
f. Mr Griffin does not himself appear to consider that the low number of contraventions to date reflects any lack of confidence in his plan. His own prediction, as reported in The Guardian on Friday 20 April, was that “many others will join in when they realise that [Mr Griffin’s] offer to pay their fines is genuine and that the company’s lawyers are primed to fight TfL in the courts.”
g. Mr Griffin and AL have twice been reported as saying that the reason why he sent out his Notice on Saturday 14 April was “to speed up” Eventech’s judicial review claim – ie (presumably) to put pressure on TfL to agree to Eventech’s application for expedition of that claim and/or on the Administrative Court to grant it.
(I should mention that Mr Chamberlain also relied upon other aspects of the defendants’ conduct including what he said was their failure to comply with the assurance to give TfL 48 hour notice of action. However, Ms Demetriou QC told the court on instructions that this was due to a series of innocent errors. Although that explanation was not consistent with other evidence before the court, I have ignored this aspect of the defendants’ conduct.)
81. Ms Demetriou QC submitted that this is all past conduct and, given the undertakings that have now been proffered, is now irrelevant looking at the matter going forward and should be ignored. I do not agree. This is so for two main reasons. First, such conduct (in particular, the instruction to drivers to use bus lanes and the indemnity) demonstrates that there is a substantial risk that unless otherwise restrained both Mr Griffin and AL are prepared to take action which, at the very least, potentially constitutes a breach of the criminal law. Second, the undertakings leave an important gap which the injunction now sought is intended to fill. In particular, without the injunction the defendants would be free to encourage or assist any PHV driver to use bus lanes which conduct would on its face constitute a potential breach of s.44 of the Serious Crime Act 2007. Absent any undertaking to the contrary (and none was proffered) there is in my judgment a substantial risk that that is exactly what the defendants will do.
82. Furthermore, if this happens, it seems to me that based on Mr Mason’s evidence and as submitted by Mr Chamberlain, there is a substantial risk that some of AL’s drivers and other PHV drivers will be persuaded to use bus lanes; that this in turn will lead to confusion among other PHV drivers and motorists as to the status of existing traffic regulations relating to bus lanes as well as congestion and traffic disruption on London’s roads; and that enforcement against all those committing contraventions will become very difficult or impossible (straining TfL’s resources and those of the Metropolitan Police and requiring TfL to direct staff from other activities).
83. In my judgment, these considerations indicate that damages would be an inadequate remedy and, having regard to the balance of convenience, militate strongly in favour of the grant of the injunction now sought.
84. In response, Ms Demetriou QC advanced a number of submissions against the grant of an injunction which were in summary as follows. Some at least of these submissions were advanced by Ms Demetriou QC in the context of the original injunction sought by TfL. Nevertheless, for the sake of completeness, I deal with them in their entirety.
Disproportionate interference/balance of convenience
85. Ms Demetriou QC submitted that the grant of relief would be a disproportionate interference with the defendants’ Article 10 rights in particular because (i) it would not serve any significant purpose: drivers would remain free to choose whether or not to use bus lanes and incur the risk of prosecution; (ii) TfL has not established that any increase in the number of AL drivers using bus lanes should an injunction not be granted would cause it any significant damage or inconvenience; and (iii) by contrast the grant of relief would cause significant (and largely unquantifiable) damage to the defendants. Therefore the least risk of injustice lies in refusing TfL’s application. These submissions overlapped with Ms Demetriou QC’s further submissions with regard to the balance of convenience; and it is convenient to address them together.
86. First, I agree that drivers would of course remain free to choose whether or not to use bus lanes and incur the risk of prosecution. However, in my view, this is of little, if any, weight. The question is whether these defendants should in effect be restrained from causing, encouraging or assisting such conduct and, in that context, it seems to me legitimate to have regard to the risks that will ensue if they are not so restrained even if the individual PHV drivers are free to choose.
87. Second, in my judgment, TfL has shown that unless an injunction is granted, there is at least a substantial risk of significant problems which I have identified above. Ms Demetriou QC submitted that these problems are “mere assertion” and in any event negligible. In particular, she submitted that Mr Mason’s statement that TfL is not equipped to issue 6,000 PCNs per day is based on an entirely unsubstantiated assumption that each of AL’s drivers would breach the TROs twice a day; that, in fact, it is inherently unlikely that AL’s drivers would risk criminal prosecution; that it would be open for TfL to choose not to issue PCNs in respect of all breaches of the TROs in the period pending the determination of the judicial review; and that it is difficult to see what damage this would cause TfL. I accept certain of these criticisms. In particular, I accept that the figure of 6,000 PCNs per day is or at least may be unrealistic – although it should be noted that that estimate ignores the other 60,000 PHV drivers in London and the possibility that at least some of them might decide to follow AL drivers. The truth is that it is impossible to prove one way or another what will or even may happen in practice if an injunction is not granted. Be that as it may, I do not accept the suggestion that it would be realistic for TfL to choose not to issue PCNs in respect of all breaches of the TROs in the period pending the determination of the judicial review nor that the difficulties described by Mr Mason are “negligible”. On the contrary, as I have stated it seems to me that unless an injunction is granted, there is a substantial risk of significant problems even if it is not possible to measure the extent of such problems. Nor, in my judgment, is the risk of these problems eliminated by the suggestion that the Parking and Traffic Appeals Service should, in effect, stay each appeal until the judicial review proceedings have been determined and then treat one appeal as a test case. That may reduce the administrative burden but it would not address the other problems.
88. Third, I recognise that the grant of relief may cause significant damage to the defendants and, as stated by Mr Griffin, the situation is time critical as the London Olympics and peak tourist season approach. However, it is in my view important to recognise that such damage would be the loss of additional profits that would be derived from AL’s drivers being persuaded to drive in bus lanes. However, on the defendants’ case, they are free to choose whether or not to do so. Further, as the defendants accept or at least do not dispute such conduct would be unlawful on the face of the present legislation. In this context, I also bear in mind that it would have been open for the defendants to have sought interim injunctive relief restraining TfL and/or others from enforcing the bus lane legislation against them pending the resolution of their challenge. Alternatively, under CPR Part 25.1(1)(b) they could have sought an interim declaration “reading down” the legislation so that lanes marked for “taxis” should be read in the interim as applying also to PHVs. At the very least, the defendants could have applied earlier for expedition. However, the defendants did not do any of these things. As submitted by Mr Chamberlain, it seems to me that a party challenging legislation who chooses not to seek interim relief of either kind nor even an early expedited hearing should expect to have to comply in the interim with the duties which the legislation, on its face, imposes.
Cross-Undertaking
89. Notwithstanding all these arguments, it seems to me appropriate that as a condition of the grant of injunctive relief, TfL should provide a cross-undertaking that if the court later finds that the order has caused loss to the defendants and/or any other person and decides that the defendants or any other person should be compensated for that loss, TfL will comply with any order that the court may make. Mr Chamberlain submitted that I should not require TfL to give such cross-undertaking and, in that context, he referred me to Lewis, Judicial Remedies in Public Law, 4th Edition, paragraph 8-056 and Kirklees MBC v Wickes Building Supplies [1993] AC 227 where the House of Lords held that it was within the judge’s discretion not to require a cross-undertaking in damages having regard, in particular, to the fact that the claimant was a statutory authority seeking to enforce the law. However, it seems to me that such cross-undertaking is appropriate in the present circumstances. In particular, it is important to note that as formulated, the cross-undertaking does not require TfL to pay any damages merely because they may fail in the judicial review proceedings. On the contrary, the cross-undertaking is more limited ie it simply constitutes an undertaking to the court that TfL will comply with any order that the court may make in the stipulated circumstances. In my view, such cross-undertaking is not unduly onerous.
No exceptional circumstances
90. Ms Demetriou QC in effect submitted that to the extent that the defendants might unless otherwise restrained cause, encourage or assist drivers to breach the existing legislation, it is far from clear that criminal prosecutions will prove inadequate; and that there are no exceptional circumstances which would justify the court granting interim relief in aid of the criminal law. I do not agree. I have already dealt in part with this argument but in this context I would emphasise the following points. First, I accept that the power of the civil courts to grant relief in aid of the criminal law is an exceptional power. As stated by lord Wilberforce in Gouriet [1978] AC 435 at p.498 F-G, it is to be used only in the most exceptional of cases in particular for the reasons stated at p.498 G to p.499 B. Nevertheless, in my judgment, it would be wrong to suggest that such power should only be used where there is proof of repeated deliberate and flagrant breaches of the criminal law: see City of London Corp v Bovis Construction Ltd [1992] 3 ALL ER 697 per O’Connor LJ at p.711 b-e and Bingham LJ at p.715 b-e. Further, consistent with the views expressed by Bingham LJ in this last passage, even if convictions are obtained, the delay before the hearing will or at least may be a relevant consideration in deciding whether the civil courts should grant injunctive relief. For the reasons stated above, it seems to me that there are exceptional circumstances which justify the grant of an injunction.
Status Quo
91. Ms Demetriou QC submitted that an injunction would interfere with the status quo and would prejudge to an unacceptable degree the outcome of the judicial review. I do not agree. In fairness to Ms Demetriou QC, that submission was originally made in the context of the relief originally sought by TfL and which has now been abandoned. In my judgment, the limited injunction now sought does not interfere with the status quo or otherwise prejudge the judicial review.
No tangible purpose
92. Ms Demetriou QC submitted that it is unclear that granting an injunction would serve any tangible purpose because AL drivers have always remained free to choose to ignore the TROs and drive in bus lanes at the risk of a criminal prosecution in which event they would be able to raise as a defence the incompatibility of the TROs with EU law. The relief sought by TFL would not change that position. I do not agree. As stated above, it seems to me that the injunction now sought by TFL serves a most important tangible purpose.
Expedited hearing
93. Ms Demetriou QC submitted that the defendants have applied for an expedited hearing of their claim for judicial review; and that an order for an expedited hearing is the appropriate way of managing this case as it would ensure that no real damage of the type asserted by Mr Mason would occur before the substantive issues in the case are determined. As I indicated at the hearing, it seems to me that the judicial review should be expedited. However, that does not of itself obviate the need for an injunction. On the contrary, for the reasons stated above, it is in my judgment both necessary as well as just and convenient to grant the injunction now sought.
Compelling Defence
94. Ms Demetriou QC submitted that TfL seeks an injunction in aid of the criminal law but here the defendants (and drivers) have a (compelling) defence to any criminal prosecution; namely that the TROs are discriminatory and in breach of EU law. This is an important factor which must be weighed in the balance as the House of Lords recognised in Kirklees. As I have stated above, I agree that the existence of a defence to a criminal prosecution is an important factor to be weighed in the balance which I have done. However, having regard to all the circumstances, the conclusion I have reached is, as I have stated above, that it is both necessary as well as just and convenient to grant the injunction now sought.
Conclusion
95. For all these reasons, it is my conclusion that it is both necessary and just and convenient to grant the injunction sought by TfL in the form sought ie until determination by the Administrative Court of the judicial review proceedings in claim CO10424/2011 or further order, an injunction restraining the defendants from causing, encouraging or assisting any private hire vehicle driver to use bus lanes marked for use by taxis during the hours when restrictions apply, save to pick up or set down passengers subject to the cross-undertaking by TfL as set out above. I will also grant the interim declaration as set out above, accept the undertakings proffered by the defendants and make an order that the judicial review proceedings be expedited.